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Delhi HC invokes Nehru,legalises gay sex

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

Written by Agencies | New Delhi |
July 2, 2009 5:52:50 pm

In a victory for gay rights activists,the Delhi High Court 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 up to life imprisonment.

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However,the Bench said Section 377 of the Indian Penal Code 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 would 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 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)”.

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