Gay sex legalised, Sec 377 violative of fundamental rights:HC

Amit Anand & Prabhati Nayak Mishra

New Delhi, July 2 (PTI) In a victory for gay rights
activists in India, the Delhi High Court Thursday legalised
homosexual acts among consenting adults holding that the
149-year-old law making it a criminal offence is violative of
fundamental rights and not punishable.

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

The verdict, which was described as "progressive" by
the gay rights activists who fought an eight-year-long legal
battle, said "section 377 denies a person's dignity and
criminalises his or her core identity solely on account of his
or her sexualities and thus violates Article 21."

"As it stands, section 377 denies a gay person a right
to full personhood which is implicit in notion of life under
Article 21 of the Constitution," the Bench said in its
105-page judgement allowing the plea of gay right activists
seeking to decriminalise homosexual acts among consenting
adults which otherwise attracts punishment upto life
imprisonment.

However, the Bench said Section 377 of the Indian
Penal Code (IPC) which criminalises homosexuality, will
continue for non-consensual and non-vaginal sex involving
minors.

The verdict evoked sharp reactions among religious
leaders with Jama Masjid Imam Ahmed Bukhari and Father Dominic
Immanuel, spokesperson of Catholic Church, strongly
disapproving the decision, saying homosexual acts were
unnatural and cannot be legalised.

The verdict comes at a time when Government is
considering the issue of scrapping section 377. The court said
its judgement will hold till Parliament chooses to amend the
law.

It clarified that "by adults, we mean everyone who is
18 years of age and above".

Observing that "there is almost unanimous medical and
psychiatric opinion that homosexuality is not a disease or
disorder and is just another expression of human sexuality,"
the Bench was critical of the provision of section 377.

"A provision of law branding one section of people as
criminal based wholly on states' moral disapproval of that
class goes counter to equality guaranteed in the
Constitution," it said.

"The provision of section 377 runs counter to the
Constitutional values and the notion of human dignity which is
considered to be cornerstone of our Constitution.

It said that any discrimination on the grounds of
sexual orientation was against Article 15 of the Constitution
which prohibits any discrimination on grounds of sex,
religion, caste or place of birth.

"Section 377 in its application to sexual act of
consenting adults in privacy discriminates a section of people
solely on the ground of their sexual orientation which is
analogous to prohibited grounds of sex," the Bench said.

The controversial law on homosexuality goes back 149
years when Lord Macaulay introduced the section in the IPC,
making carnal intercourse punishable.

The High Court in its judgement said, "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,"
Justice Shah writing the judgement for the Bench said.

It clarified that "its judgement will not result in
the reopening of criminal cases involving Section 377 of IPC
that have already attained finality."

The High Court, while allowing the Public Interest
Litigations (PILs) filed by an NGO, Naz Foundation and others
fighting for gay rights, ruled out the government's contention
that decriminalisation of homosexual acts would lead to spread
of HIV virus.

"There is no scientific study or research work by any
recognised scientific or medical body or for that matter any
other material to show that any casual connection existing
between decriminalisation of homosexuality and the spread of
HIV/AIDS," the Bench said.

It rejected the contention of the Government that gay
sex is "immoral" and homosexual comprises only 0.3 per cent of
the population and the rights of more than 99 per cent
population cannot be compromised by legalising such behaviour.

"Moral indignation, howsoever strong, is not a valid
basis for overriding individuals' fundamental rights of
dignity and privacy. In our scheme of things Constitutional
morality must outweigh the argument of public morality, even
if it be the majoritarian view," the Bench said.

The Bench observed that the inclusiveness that the
Indian society traditionally displayed in every aspect of life
manifested in recognising a role in society for everyone.

"Those perceived by the majority as 'deviants' or
'different' are not on that score excluded or ostracised," the
Bench said.

Where society can display inclusiveness and
understanding, such persons can be assured of a life of
dignity and non-discrimination, it said.

"This was the spirit behind the resolution of which
Jawaharlal Nehru spoke so passionately," the Bench said
referring to the Objective Resolution moved by him on December
13, 1946 at the Constituent Assembly debate.

Quoting Nehru, Justice Shah said "words are magic
things often enough, even the magic of words sometimes cannot
convey magic of human spirit and of a nation's passion
...(this resolution seeks very feebly to tell the world of
what we have thought or dreamt of so long, and what we now
hope to achieve in near future)". PTI AAC
RAI
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