Inter Press Service - September 12, 2003
Ranjit Devraj

Aman Lekhi, counsel for the government, told the Delhi High Court on Monday that homosexuality cannot be legalised in India because "Indian society is intolerant to the practice of homosexuality/ lesbianism".

Lekhi was responding to public-interest litigation filed by the Delhi-based non-government organisation (NGO) Naz Foundation-India that challenged provisions in the Indian Penal Code that says "whoever voluntarily has sex against the order of nature with any man, woman or animal, shall be punished with imprisonment of either description for a term which may extend to ten years".

The code framed in 1850 by British colonials, was subsequently modified, but continues to reflect Victorian mores.

According to Lekhi, legalising homosexuality "can well open the floodgates of delinquent behaviour and be construed as providing unbridled license for the same".

Naz Foundation, a leading NGO that works with people with HIV/AIDS and runs a hospice in the capital, argued that thanks to the penal code, homosexuals in India are open to harassment by police. This, in turn, hampers intervention efforts that could prevent the spread of HIV.

The 2001 petition has drawn comment from the court that said the issues it raised could not be easily swept aside merely on the grounds of social morality. It has posted another hearing in early December.

But the government's view in Monday's arguments has already dismayed homosexuals. "Are we living in the 21st century? This is violation of our rights," one said in an interview with IPS.

Counsellors at call centres across the country said they have been besieged by calls all week from gays and lesbians who had been hoping for a change in laws that would allow them to come into the open.

"Counselees have been asking to know what she or he can or cannot do," said Vinay, a counsellor with the Sahaya Helpline in Bangalore city.

But Vinay told IPS that regardless of the outcome of the litigation, "societal homophobia was not going to go away so easily and would require systemic changes at several levels".

This is because homophobic violence by law enforcers is a serious issue, as several well-publicised cases would show, he said.

In fact, the harassment of homosexuals and those who work against discrimination against them has attracted the attention of international rights groups such as Amnesty International and Human Rights Watch, both based in the United States.

In 2001, police in Lucknow raided the offices of Naz Foundation International and the Bharosa Trust and arrested staff of the two organisations for "possession of obscene materials and with conspiracy to commit sodomy".

Commenting on the situation, Amnesty International said in a report: "One branch of the government - the public health service -- relies on the non-governmental sector to provide condoms and information to persons who engage in high-risk behaviour, while another branch of government - the law enforcement establishment - abuses those who provide these services."

The government's stand in the Delhi High Court this week has also drawn a welter of comments both in support of it as well as against.

In an editorial on Wednesday titled 'Nanny State', the liberal 'Indian Express' newspaper said the government was making an "attempt to nanny the people and control adult behaviour, which goes against the grain of libertarianism that is an essential part of Indian democracy".

It pointed to recent examples around the world, such as the U.S. state of Texas striking down an anti-sodomy law in June and the Canadian provinces of British Columbia and Ontario ratifying same-sex marriages.

"The government's position will only drive the practice underground with seriously negative consequences in an age when HIV/AIDS is set to assume pandemic proportions," the 'Indian Express' editorial said.

But the rights group Joint Action Council-India, which has impleaded itself in the case being heard by the Delhi High Court, said the government has in fact "not been persecuting people on grounds of private sexual choices". It was therefore unfair to say that it was acting as a nanny, it argued.

"Such activities would be impossible to criminalise under any law since the situation precludes any witness or complainant," said Purushottaman Mulloli, general convenor of JAC-India.

Mulloli challenged in court the ability of the Naz Foundation to file public-interest litigation, which can be taken recourse only by victims and not by any organisation.

The JAC also pointed out in court that Naz Foundation failed to provide evidence of harassment under relevant sections of the Indian Penal Code. (END/IPS/AP/HD/HE/RDR/JS/03) .

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