Indian Express: Delhi HC legalises gay sex

2 July 2009
Indian Express
Source

Historic judgment: Delhi HC legalises gay sex

In a breakthrough judgment, the Delhi High Court on Thursday legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.

However, Section 377 of the Indian Penal Code which criminalises homosexuality, will continue for non-consensual and non-vaginal sex.

“We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution,” a Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.

The High Court said ‘the provision of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors’.

The court clarified that “by adults we mean everyone who is 18 years of age or above”.

It further said that this judgement will hold till Parliament chooses to amend the law.

“In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.

“It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,” the Bench said in its 105-page judgement.

The UPA was initially in favour of repealing Section 377 with Law Minister Veerappa Moily calling the law “outdated.”

But the Centre later backtracked with both Moily and Health Minister Ghulam Nabi Azad calling for “consensus.” Section 377 criminalises “carnal intercourse against the order of nature,” a phrase interpreted to ban homosexuality.

The petitioners Naz Foundation (along with an activist group ‘Voices Against 377’) argued that the law violated the constitutional rights of homosexuals and that the section should be “read down” to exclude “consensual sex between adults” from its ambit, in effect decriminalising homosexuality in India.

The previous UPA government had opposed the petition. Former MP B P Singhal, who “intervened” to oppose the petition, said that if the HC decided to “read down” Section 377, he would go to the Supreme Court in appeal.

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