By Ranjit Devraj
NEW DELHI, Sep 16 2004 (IPS)

While the Delhi High Court dismissed this month public interest litigation seeking to quash laws dating back to colonial times that make homosexuality a punishable offence, human rights activists have sworn to continue seek legal avenues to decriminalise gay sex between consenting adults.

”We plan to ask for a review of the Sep. 1 dismissal by the High Court or even approach the Supreme Court,” Tripti Tandon of the Lawyers Collective, a well-known voluntary agency told IPS.

Tandon said on Wednesday the dismissal was largely technical with the court holding that there is ”no cause for action” and that the petition seemed to have been filed ”just for the sake of testing the legislation.”

The Lawyers Collective had in December 2001 filed the original petition in the Delhi High Court along with Naz Foundation that works with HIV/AIDS victims and runs one of two hospitals for those affected by the disease in New Delhi.

”We believe that the matter was handled arbitrarily in court and there was no sound judicial basis for the rejection,” said Shaleen Rakesh who works for Naz Foundation.

Naz Foundation argued that the law hampered the work of organisations fighting HIV/AIDS and prevented gay males from coming forward to disclose their problems, particularly on issues related to sexually transmitted diseases (STDs) – because they feared the law.

Naz Foundation and the Lawyers Collective also argued in court that Section 377 of the Indian Penal Code dating back to 1861 and framed by British colonials provided moral and legal sanction for continued social and legal discrimination against sexual minorities in this country.

They said that the archaic law ran counter to laws guaranteeing the right to liberty and privacy enshrined in the Constitution of the Indian Republic.

In Britain itself parliament through the 1967 Sexual Offences Act decriminalised homosexuality and acts of sodomy between consenting adults.

But the government in India has held that while privacy was to be respected, interference by public authority may become necessary when ”public safety and protection of health and morals” were at stake.

For the most part public opinion in conservative India seems to swing behind the government’s view.

Father Dominic Emmanuel, spokesman for the Delhi Catholic Archdiocese said homosexuality had the general effect of creating ”revulsion” in people and that he personally considered it to be ”against human nature.”

Vijay Nagraj who represents Amnesty International in India admitted that public opinion seemed to run against homosexuality in India but said the law had to be based on the principles of human rights and not ”blindly follow public opinion.”

Ironically what might have prompted the Delhi High Court decision was an intervention petition filed by the Joint Action Council (JAC), a prominent group that fights for the rights of HIV/ AIDs victims.

JAC pointed out, to the court, that there was no evidence Article 377 had ever been used against gays.

But JAC convenor Purushothaman Mulloli said at a press conference this week that ”it may well be that the existing law needs to be better articulated.”

Mulloli also said that the December 2001 petition attempted to label gays as a ” sexual minority” and this he pointed out was actually a disservice to the community especially at a time when there was evidence of increasing acceptance of homosexuality in Indian society.

”Historically, homosexuality has had broad acceptance in this country and its existence down the centuries is celebrated in sculpture and in classical references,” Mulloli said adding that what was really needed was comprehensive legislation that dealt with all concerned issues.

But Mulloli said using Article 377 to fight paedophilia, which was being done at present, seemed to suggest erroneously that all paedophiles were homosexual men.

Enakshi Ganguly Thukral of the National Campaign Against Child Abuse said she did not want to see a situation where child rights could end up being pitted against gay rights.

Those who have argued against scrapping of Article 377 have included Ravi Shankar Prasad, a former cabinet minister and lawyer who said the law was the only mechanism available against the sexual abuse of street children, particularly that of young males.

The debate on whether or not to retain Article 377 sharpened after Aug. 14 when a gay project officer working for the United States Agency for International Development (USAID) was discovered dead with multiple stab wounds.

Pushkin Chandra’s killers later confessed to police that they were provoked into stabbing him when he insisted on photographing them performing gay acts.

Gay rights activist Pramada Menon said the case, sensationalised in the media, seemed to have an averse effect on public opinion which was already deeply biased against homosexuals.

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