Dismissing the petition by the Naaz Foundation, a voluntary organisation working to create awareness about AIDS among sex workers here, a Division Bench comprising Justice B.C. Patel and Justice B.D. Ahmed said since no cause of action had arisen, the petition could not be filed merely to test the validity of the law.

The Union Government had also opposed the petition submitting that if the relevant Section was deleted, it would open the floodgates of "delinquent behaviour" and be misconstrued as providing an unbridled licence for the same.

The organisation had sought striking down of the penal provision saying that it violated Articles 14, 15 and 21 of the Constitution relating to Fundamental Rights.

However, the Union Government said that the Section does not violate Article 14 as it only says that whoever voluntarily has carnal intercourse against the order of the nature with any man, woman or animal shall be punished. Since Section 377 was primarily used for punishing child sexual abuse and complementing lacunae in rape laws, not mere homosexuality, it was not violative of Article 15 of the Constitution, the Government said.

The Law Commission of India had also considered the issue of whether to retain or repeal Section 377. It had observed that Indian society in general disapproved of homosexuality and this was strong enough to justify treating it as a criminal offence, even if the adults indulged in it in private.

While a government could not police morality in a civil society, the law had to express and reflect public morality and concerns about harm to society at large. If this was not observed, whatever little respect for law was left would disappear, as the law would have lost its legitimacy, counsel for the Government stated.

No comment was made about the fact that the law originated from antique colonial British rule, no longer relevant even in Great Britain.