Anti Sodomy Law

An essential component of a public health response to the HIV/AIDS epidemic is to ensure that men who have sex with men (MSM), who are vulnerable to contracting HIV, are able to access health information and services relating to HIV. The law, however, poses a barrier to such access as it criminalises sex between consenting adults of the same sex. Section 377 of the Indian Penal Code, 1860 (IPC) penalises "unnatural offences", i.e. "carnal intercourse against the order of nature". Though it is textually gender neutral, section 377 has been mainly used against MSM. This has the effect of deterring MSM from accessing health information and services for fear of being identified as MSM. In 2001, Naz Foundation, an NGO working with MSM, filed a writ petition [Click here to download attachments] before the Delhi High Court challenging the constitutional validity of Section 377 of the IPC. The petition claims that Section 377 of the IPC violates the rights to equality, health, life and other fundamental freedoms of sexuality minorities, more particularly MSM. Joint Action Council Kannur (JACK) filed an intervention application to be made a party to the case, which was allowed. In November 2002, JACK filed a counter affidavit [Click here to download attachments] opposing the petition. In September 2003, the Government of India too filed a counter affidavit [Click here to download atachments] opposing the petition. Subsequently, on 2 September 2004, the Delhi High Court passed an order [Click here to download attachments] dismissing the petition. The Delhi High Court held that since no prosecution under Section 377 of the IPC was pending against Naz Foundation, it could not challenge the law. On 3 November 2004, the Delhi High Court passed an order [Click her to download attachments] rejecting a review petition filed against the order of dismissal. Naz Foundation then filed an appeal before the Supreme Court. On 3 February 2006, the Supreme Court passed an order remanding the matter back to the Delhi High Court so that the matter could be heard on its merits. The case is presently before the Delhi High Court.
After the case was remanded back to the Delhi High Court, the National AIDS Control Organisation filed a reply affidavit [Click here to download attachments] to the petition supporting the decriminalisation of consensual sex between adults of the same sex.
Two further intervention applications have been allowed-one by B. P. Singhal opposing the petition and one by VOICES Against 377 supporting the petition.
Naz Foundation has filed rejoinders to the counter affidavit filed by JACK [Click here to download attachments] and the Government of India [Click here to download attachments] .

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