Friday, April 1 2005 18:50 Hrs (IST) - World Time -

New Delhi: The Supreme Court today (Apr 1, 2005) issued notices to the Centre and the Delhi Government on a petition by an NGO challenging the constitutional validity of Section 377 of Indian Penal Code (IPC), which makes all types of unnatural sex, including homosexuality, a punishable offence.

The petition was filed by the NGO - Naaz Foundation - challenging the Delhi High Court judgement, which had dismissed their plea saying a petition cannot be filed just for testing the validity of a legislation.

A Bench comprising Justice Y K Sabharwal and Justice P P Naolekar also allowed the impleadment of Kerala-based NGO - Joint Action Council Kannur (JACK) - which opposed the petition of the Naaz Foundation, as respondent in the matter.

Besides the Centre, Delhi Government and the JACK, the court has sought replies within four weeks from National Aids Control Organisation, Delhi State Aids Control Society and Delhi Police Commissioner on the controversial issue.

During the hearing, the Bench expressed its surprise over the acrimony between the so-called NGOs on the issue on which international debate has been taking place.

"While one NGO is seeking declaration of section 377 as ultra vires of the Constitution, the other is supporting the provisions of the section 377," the court observed.

"We fail to understand why there is this type of private litigation between parties with ulterior motives which is most unfortunate," it observed.

The Foundation, which claimed to have been working for AIDS awareness, had filed the PIL in 2001 in Delhi High Court seeking to declare section 377 of IPC as violative of Articles 14, 15, 19 (1) (a to d) and 21 of the Constitution.

The NGO had alleged that police use the threat of law to harass homosexuals and had sought to restrain the law enforcing agencies from enforcing section 377 of IPC.

In its affidavit filed in the High court last year, the Centre had opposed the petition saying homosexuality cannot be legalised in India as the society disapproves of such behaviour.

"Deletion of Section 377 of IPC can well open the flood gates of delinquent behaviour and be construed as providing unbridled licence for the same," Government had said.

Citing the Law Commissions 42nd Report, the Centre had said "Indian society by and large disapproves of homosexuality and the disapproval; is strong enough to justify it being treated as a criminal offence even where adults indulge it in private."

According to the Government, "the purpose of Section 377 is to provide healthy environment in society by criminalising unnatural sexual activities against the order of the nature."

The NGO had contended that the provision was coming in the way of AIDS awareness campaign across the country.

It had sought to legalise homosexuality on the grounds that due to fear of police action, consenting adult males having sexual relations were not coming forward to disclose their problems, though they were more prone to HIV infection.

According to Section 377 of IPC, whoever voluntarily has sex against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment for a term, which may extend to 10 years.