The search for legal acceptance by the Indian gay community went one step forward when the Supreme Court Friday sent back the Special Leave Petition filed by the Naz Foundation to the Delhi High court.
In 2004, the high court had dismissed a plea by Anajli Gopalan of Naz who was seeking repeal of Section 377 of the Indian Penal Code, which makes homosexuality an offence punishable by imprisonment for upto 10 years. Naz argued that Section 377 is unconstitutional and discriminatory.
The high court said that there is no reason to interfere with the provision because the petition was filed by an organisation and not by individuals and the matter is not of "public interest."
Naz had contested the verdict in the apex court.
The Supreme Court sent back the petition to high court saying that it's a matter related to public interest.
The IPC rules that man having sex with man is a criminal act and it is "against nature." Indian law says that whoever has unnatural nature can be punished.
Because of this definition Naz said it found it difficult to propagate safe sex amongst gays.
Indira Jaising of the Lawyers' Collective, which representated Naz, said, 'We can't do advocacy amongst a section which is essentially criminal in the eye of law. How do we recommend safe sex to prevent HIV-AIDs to people who are criminals in law?"
Jaising argued in the Supreme Court that the definition of sex according to Indian laws is discriminatory.
Already in countries like Canada, South Africa, Australia and Europe liberal views are being accepted over gay issues but Indian courts had so far shown reluctance to change the laws. This time, however, the central government didn't oppose the arguments of petitioners hotly.
"I think Indian laws will have to fall in line with growing world view regarding issues related to sexuality. The stereotypes of sexual orientation should be removed from the Indian mentality." Jaising said.
