www.infochangeindia.org
Sunday, 28 July 2013

E-mail Print PDF

Gay sex ‘not criminal’: Delhi High Court

The Delhi High Court has legalised gay sex among consenting adults, holding that the law making it a criminal offence violates fundamental rights

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

“We declare Section 377 of the Indian Penal Code (IPC) insofar 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 on July 2, 2009. 

The bench clarified that “by adults we mean everyone who is 18 years of age or above,” adding, “the provision of Section 377 of the IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”. 

“In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who LGBTs are. It cannot be forgotten that discrimination is the 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 judgment comes close on the heels of statements from central ministers on the possibility of legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBTs), and, legal experts say, will hold till Parliament chooses to amend the law. 

The ruling United Progressive Alliance (UPA) government was initially in favour of repealing Section 377, with Law Minister Veerappa Moily calling the law “outdated”.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 a “consensus”. Section 377 criminalises “carnal intercourse against the order of nature,” a phrase interpreted as a ban on homosexuality. 

The petitioners Naz Foundation (along with the 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 high court judgment overturns the 148-year-old law that forces many people in the country to regard same-sex relationships as illegitimate. Homosexual acts were punishable by a 10-year prison sentence. 

“It is a fabulously written judgment, and it restores our faith in the judiciary,” says activist and lawyer Aditya Bandopadhyay. The National AIDS Control Organisation (NACO) has long pointed to the fact that infected people are being driven underground and that efforts to curb the HIV virus were being hampered by this outdated law. According to one estimate, over 8% of homosexual men in India are infected with HIV, compared to fewer than 1% in the general population. 

The high court’s decision was, however, greeted with unease by other groups. 

Father Dominic Emanuel of India’s Catholic Bishop Council said the church did not “approve” of homosexual behaviour, although “our stand has always been very clear. The church has no serious objection with decriminalising homosexuality between consenting adults, the church has never considered homosexuals as criminals,” Father Emanuel said. 

Below is a brief chronology of the eight-year-long legal battle in the Delhi High Court:  

  • 2001: NGO fighting for gay rights, Naz Foundation, files a public interest litigation (PIL) seeking legalisation of gay sex among consenting adults.
  • September 2, 2004: Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.
  • September 2004: Gay rights activists file a review petition.
  • November 3, 2004: High court dismisses the review plea.
  • December 2004: Gay rights activists approach the apex court against the order of the high court.
  • April 3, 2006: Apex court directs the high court to reconsider the matter on merit and remands the case back to the high court.
  • October 4, 2006: High court allows senior BJP leader B P Singhal’s plea opposing decriminalisation of gay sex to be impleaded in the case.
  • September 18, 2008: Centre seeks more time to take a stand on the issue after the contradictory stands of the home and health ministries over decriminalisation of homosexuality. The court refuses the plea and final arguments in the case begin.
  • September 25, 2008: Gay rights activists contend that the government cannot infringe upon their fundamental right to equality by banning homosexual acts on grounds of morality.
  • September 26, 2008: Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by the health and home ministries.
  • September 26, 2008: Centre says that gay sex is immoral and a reflection of a perverse mind; its decriminalisation would lead to moral degradation of society.
  • October 15, 2008: High court pulls up the Centre for relying on religious texts to justify the ban on gay sex and asks it to come up with scientific reports instead.
  • November 2008: Government, in its written submission before the high court, says the judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.
  • November 7, 2008: High court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.
  • July 2, 2009: High court allows gay rights activists’ plea and legalises gay sex among consenting adults.

Source: The Indian Express, July 2, 2009
            The Economic Times, July 2, 2009
             http://news.bbc.co.uk, July 2009 



 

Notice: Use of undefined constant id - assumed 'id' in /home/hivaidsonline/hivaidsonline.in/modules/mod_moreincat/helper.php on line 17

Notice: Use of undefined constant catid - assumed 'catid' in /home/hivaidsonline/hivaidsonline.in/modules/mod_moreincat/helper.php on line 18

Notice: Use of undefined constant catid - assumed 'catid' in /home/hivaidsonline/hivaidsonline.in/modules/mod_moreincat/helper.php on line 33

Notice: Use of undefined constant sectionid - assumed 'sectionid' in /home/hivaidsonline/hivaidsonline.in/modules/mod_moreincat/helper.php on line 34

More In This Section