Gay sex legalised by Delhi High Court

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: In a pathbreaking judgement, 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 AP 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 high court, while allowing the PILs filed by an NGO, Naz Foundation and others fighting for gay rights, clarified that “its judgement will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality”

It 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 Chief Justice writing the judgement for 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.