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Why repealing Sec 377 easier said than done

Following oppositions from political parties as well as influential sections of community leaders,Govt is now treading very cautiously in the issue of de-criminalising homosexuality.

Written by Express News Service | New Delhi |
June 30, 2009 8:56:34 am

Two days after a senior Government functionary indicated that there was a concerted move to repeal Section 377 of the Indian Penal Code and,thus,de-criminalise homosexuality,it became clear on Monday that evolving a consensus on this hot-button issue is easier said than done.

Following opposition from within the Congress,the Opposition parties and influential sections of Christian and Muslim community leaders,the Government is now treading very cautiously.

Health Minister Ghulam Nabi Azad said there was need for debate and consensus. “I can simply say that there should be more debate — public debate,Parliament debate. There has to be a consensus. The negative and positive has to be evaluated and then a conclusion should be evolved,” Azad said.

“Not only the Government but other political parties should also be in line with it. If you are going to be bringing in a legislation of this nature,there has to be a broad consensus,” he said. Azad said while certain issues were related to the country’s culture,others pertained to diseases associated with homosexuality. “There should be a general debate where our heritage as well as diseases are considered,” he said.

About a fortnight ago,Law Minister Veerappa Moily had said that some sections of the IPC were outdated and had included Section 377 as being one of them. on Monday,he was more circumspect. “The Government cannot take a decision in a hurry. We need to apply our mind. We are examining it,” he said. “I have never said it will be repealed — the statement has been misinterpreted. As far as Section 377 is concerned,I have said I have not examined it yet.”

The issue is understood to have come up for discussion at the Congress Core Group meeting at Prime Minister Manmohan Singh’s residence today but the party remains a divided house. A section is wary of public reaction,especially in rural areas,and from minority groups. “Let the government decide,the party has no opinion about it. The Home Minister has said he will talk to religious leaders and others,” AICC spokesman Shakeel Ahmed said today.

Minority groups also came out with their notes of caution. “Decriminalising homosexuality is one thing but we are against legalizing it because the Church considers family,created by a man and woman after they enter into holy matrimony,as the basic unit of society,” spokesperson of the Catholic Bishops Conference of India Babu Joseph told The Indian Express.

“Islamic laws and tenets do not permit homosexuality. It is haram (prohibited) in Islam. It is an offence. I think other religions also hold the same view,” Deputy Vice Chancellor of noted Islamic seminary the Darul Uloom Deoband Maulana Abdul Khalik Madrasi told ‘The Indian Express’. “There is no need for blindly aping Western culture.”

All India Muslim Personal Law Board member and Jamaat-i-Islami-Hind leader S Q R Ilyasi said the community was opposed to the move and warned the Government against playing with people’s religious sentiments. “We are trying to contact other religious leaders and bring them to a common platform to oppose this move,” he said. The Jamaat,he said,is planning to talk to Hindu priests,church leaders and representatives of the SGPC soon.

The Opposition BJP also played safe saying the government need not have shown haste on the issue of repeal especially when the court is likely to pronounce its verdict soon on a petition seeking repeal on the grounds that it hampers the anti-AIDS drive.

It’s learnt that the Home Ministry is planning to ask state governments to send their views on the matter as the IPC is on the concurrent list. Last year,sharp differences between then Home Minister Shivraj Patil,then Health Minister Anbumani Ramadoss and then Law Minister Hansraj Bhardwaj — who backed Patil — prevented the Centre from taking a final view on the matter.

While both Patil and Bhardwaj wanted the law to be retained,Ramadoss strongly favoured its repeal. In fact,at the meeting of the Union Cabinet last October,a majority of the Ministers supported Section 377. Many of them even criticised what they called Ramadoss’s “uncalled-for utterances” on the issue.

The Cabinet decided to continue opposing the demand for its repeal in court but asked the three ministers to sit together and sort out their differences. That meeting never took place and until November 7 last year,when the High Court reserved its judgment,the government stand continued to be that it was not in favour of the Section being repealed.

So much so that in his written submissions on behalf of the Union of India filed after the court had reserved its judgment,Additional Solicitor General (ASG) P P Malhotra questioned the authority of the court to decide the matter. The court,the statements said,was “not the authority to decide what should be the law or what should not be the law”.

Rather,it was the job of the Parliament and the will of the Parliament was represented by MPs,he argued. He also claimed that if consenting adults were permitted to have “same-sex relations,” it would affect the health of other citizens exposed to the risk.

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