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SC’s notice to Centre on gay sex
Published on 9 Jul. 2009 11:37 PM IST
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The Supreme Court on Thursday issued notice to the Centre and NGO Naz Foundation on a petition challenging the Delhi High Court judgement decriminalizing gay sex. The court has sought the reply by July 20. Clarifying that marriage laws had not changed, the apex court refused to stay gay marriages. Any interim order for staying gay marriages or their registration would be considered after hearing the Centre and other parties concerned. The Supreme Court was hearing a petition filed by astrologer SK Kaushal challenging the Delhi High Court judgement on Section 377. While mentioning the petition, the counsel, appearing for the astrologer, said that since the high court verdict, there have been seven cases of gay marriages, and raised several questions, which, he claimed, were likely to affect the institution of marriage, reported PTI. However, the SC Bench said, “We have not changed the definition of marriage.” During the brief hearing, when the counsel was pointing to what he claimed was the adverse impact of the judgement decriminalising gay sex among the consenting adults, the Bench said the police had not been registering cases in such matters. It said though the law has been in force since 1860, there have been only a handful cases under the penal provision except those of paedophile cases. For “gay sex, to my knowledge, no body has been prosecuted,” the Bench, also comprising Justice P Sathasivam, said. The petition filed by Kaushal sought quashing of July 2 verdict of the high court legalising gay sex between consenting adults in private, which was earlier a criminal offence punishable with upto life imprisonment. The petition contended that homosexual acts, by all standards, were “unnatural” and could not be permitted. “No one can imagine the consequences of the unnatural acts. Even animals don’t indulge in such activities,” he said in his petition. He said the high court judgement would result in spread of HIV virus as “it has been amply proven” that the infection was contracted through such sexual acts. “We have to look at our own scriptures to seek guidance from them and they are against such behaviour in our society. If such abnormality is permitted, then tomorrow people might seek permission for having sex with animals,” he argued. Armed forces ‘no’ to gay sex India’s armed forces have received the Delhi High Court’s judgement decriminalising homosexuality with a resounding “no”, with armed forces acts saying such behaviour is deemed unnatural and can be a punishable offence. Gay rights remain a largely metropolitan phenomenon and homosexuality is strict taboo for a majority of India’s 1.1 million soldiers, the Indian military stresses. Citing global trends, it contends that legalising homosexuality in the services is not feasible. “No armed force in the world has legalised homosexuality as in an institution like this it can have adverse consequences. Soldiers are posted in the remotest of areas and have to live in close proximity for long. Any legalisation of homosexuality would adversely impact inter-personnel relations,” a senior official of the Indian Army told IANS, requesting anonymity. “Moreover, our jawans come from a rural background and they do not consider homosexuality normal behaviour.” During recruitment, the Indian military establishment does not ask the sexual orientation of the applicant. But in the forces, homosexuality is deemed “indecent” and “unnatural” behaviour and can lead to court martial. Though the Armed Forces Act does not mention homosexuality, it is illegal under sections 45 and 46 (a) of the Army Act, 1950, and the Air Force Act, 1950, which deal with “unbecoming conduct” and “any disgraceful conduct of a cruel, indecent or unnatural kind”. Offenders are liable to face court martial. They may also be cashiered or suffer other punishment. The Navy Act, 1957, makes “indecent act” and “unbecoming conduct” illegal, which effectively includes homosexuality. The Delhi High Court ruled July 2 that gay sex among consenting adults is not a crime. The court sought changes in the Indian Penal Code’s Section 377, a relic from the British Raj, which relates to “unnatural offences” and says that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished”. The British Army now openly welcomes gays into its ranks. In the US, the policy of ‘don’t ask, don’t tell’ is followed - gays are prohibited from speaking about their sexual orientation while serving in the armed forces. They face dismissal if they do so. The US Congress has passed a specific law that homosexuals are ineligible to be enlisted in the armed forces. “The repercussions (of legalising homosexuality in the armed forces) in India would be very serious. There may be cases when a senior forces a junior into the act and proves it to be consensual,” another official of the Indian Army said. According to the officials, there have been several incidents of homosexuals being asked to put in their papers and cadets being expelled from the National Defence Academy (NDA), Khadakvasla, for their “unbecoming conduct”. “Though we think that sexual preferences are a matter of personal choice, legalising homosexuality in the armed forces is a big no. Just think about the NDA where one remains in close proximity with other cadets. Legalising homosexuality would certainly increase sexual harassment cases,” an Indian Air Force (IAF) official added.

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