The Delhi High Court has dismissed a petition seeking review of its order rejecting a Public Interest Litigation challenging the constitutional validity of Section 377 of the Indian Penal Code, which makes all kinds of unnatural sex, including homosexuality, a punishable offence.
"The review petition cannot be entertained," a division bench of Chief Justice B C Patel and Justice B D Ahmed said on Wednesday, dismissing the petition filed by NGO Naz Foundation.
Earlier, senior counsel Anil B Divan pointed out on behalf of the NGO that the court had erred in dismissing the petition as it failed to take into account recent judgments of the Supreme Court on the question of locus standi.
Divan also submitted that the law on homosexuality has drastically changed in various parts of the world, including the US and the European Union countries.
However, the court said, "Whatever is available in the US cannot be made available in India also."
The Bench had on September 2 last dismissed the petition filed by Naz Foundation on the ground that there was no cause of action for the petitioner to approach the court.
"A petition cannot be filed just for testing the validity of a legislation," the Bench had said.
The NGO, which works for AIDS awareness, had filed the PIL in 2001, seeking to declare Section 377, IPC as violative of the right to equality (Article 14), right to freedom (Article 19) and right to life and liberty (Article 21) of the Constitution.
The Centre had opposed the petition saying homosexuality cannot be legalised in India as the society disapproves of such behaviour.
"The public, notably in the UK and the US, has shown tolerance of new sexual behaviour or sexual preference, but it is not universally accepted behaviour. Objectively speaking, there is no such tolerance to the practice of homosexuality/ lesbianism in the Indian society," the Centre had stated.
However, the NGO said the court should have taken into account the grave threat to public health by proliferation of HIV as Section 377 was leading to marginalisation of homosexual minority and preventing them from coming in the open for help.
