Morality cannot overshadow fundamental rights: Gay activists NDTV.com
Posted on September 28, 2008
Filed Under Gay News Blog
(New Delhi) – - – Stressing that morality cannot overshadow fundamental rights of a citizen, gay rights activists on Thursday argued before the Delhi High Court for decriminalisation of homosexuality among consenting adults.
The moral argument cannot triumph over the constitutional rights in a democratic society where fundamental rights prohibit any discrimination on the ground of sex, said advocate Shyam Diwan, appearing on behalf of the activists.
He also added that homosexuals in the country do not have full moral citizenship and they are being treated as second-class citizens.
A bench comprising of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar was hearing a petition filed by 13 NGOs, including Naz Foundation, seeking the court’s direction to decriminalise homosexual acts among consenting adults by amending Section 377 of the Indian Penal Code (IPC).
The IPC at present holds homosexual act as an offence and the section provides a punishment of up to life imprisonment for indulging in such acts.
“There are many identities by which a person is recognised. Normally people’s identity is decided by one’s nationality, caste, religion and region but when it comes to a gay, lesbian or trans-gender person, it is their sexual orientation which becomes their sole identity,” the lawyer said.
During the last hearing, the government sought more time from the court to sort out differences between the home and health ministries over decriminalisation of homosexuality among consenting adults.
The government in its earlier reply had taken a contradictory stand with the home ministry favouring the retention of the penal provision for homosexual acts while the health ministry was against the enforcement of Section 377 (‘unnatural offences’) in cases involving consenting adults.
“Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private,” the home ministry had said in its affidavit earlier.
“Deletion of the section can open the floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts,” it had said.
The health ministry, on the other hand, has opposed the enforcement of the penal provisions against consenting homosexual adults.
“Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practices go unnoticed,” said an affidavit filed by the National Aids Control Organisation (NACO), which comes under the health ministry.
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