It’s not a crime to be gay | india | Hindustan Times
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It’s not a crime to be gay

india Updated: Jul 03, 2009 07:56 IST
Harish V Nair
Harish V Nair
Hindustan Times

The Delhi High Court on Thursday legalised homosexual acts between consenting adults by overturning a 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS.

Acting on a public interest litigation filed in 2001 by Naz Foundation, a non-profit organisation working for HIV/AIDS prevention, a bench of Chief Justice AP Shah and S Muralidhar declared unconstitutional a part of Section 377 of the Indian Penal Code (IPC) that criminalised unnatural sex.

"We declare Section 377 of IPC insofar as it criminalises consensual sexual acts of adults in private as violative of…the Constitution,” ruled the bench.

“As it stands, the section denies a gay person a right to full personhood…” the bench added in a 105-page judgment delivered in a jam-packed courtroom.

Trivia on Homosexuality
Legalised in Norway and Sweden
Criminalised in Burundi
Legalised in Iraq
Legalised in Mexico
Legalised in England
Death sentence in Iran, UAE, Saudi Arabia, Yemen, Syria.

The court held that the provision violated fundamental rights (of the sexual minorities) to life, liberty, equality and the provision regarding prohibition of discrimination on grounds of sex.

The verdict has implications for heterosexuals also, as all consensual sexual acts of adults in private stand legalized. Earlier, oral and anal sex were treated as unnatural, punishable under the same section.

Rejecting the Home Ministry argument that homosexuality was a mental disease, the judges said it was “just another expression of human sexuality”.

As Shah pronounced the verdict, a large number of gay activists in court erupted in celebration. Many thumped the desk and hugged each with eyes welling up with tears.

"Now it seems we are in 21st century as the rights of homosexuals have been recognised by the court. This is very progressive judgment which recognizes the right to equality of homosexuals,” said Anjali Gopalan of Naz Foundation.

Some religious leaders and politicians came out against the judgment. Yoga Guru Baba Ramdev said homosexuality was a disease and he will challenge the order.

But the government is in no hurry to take a final decision on whether to challenge the judgement. “Let me examine the court judgement. We need to look at the details,” said Union Law Minister M Veerappa Moily.

The ruling comes at a time when the UPA government seemed prepared to take a re-look at the 19th century colonial law that treated homosexual activity as a crime – its ministers went on record to say recently that the government would take another look at Section 377 IPC.

Landmark judgements
England: Homosexual behaviour between consenting adults decriminalised in 1967.
1981 Dudgeon judgment of the European Court, no prosecution possible relating to homosexual behaviour in private, between consenting adults.
South Africa: In 1998 one of the most respected international judicial institutions, unanimously invalidated provisions of several criminal laws, which made punishable homosexual conduct between consenting adult males in private, as violative of the Equality Clause.
2006: The Hong Kong Court of Appeal, in September 2006, unanimously invalidated similar provisions in Hong Kong laws, which criminalise homosexual practices in private, between consenting adults.
In 1986, the United States Supreme Court upheld, by 5 against 4, a Georgia statute criminalising homosexual behaviour in private, between consenting males. However, in 2003, the earlier majority judgment was overruled and the minority judgment approved, by a majority of 6 against 3, while invalidating a Texas statute and quashing the convictions based on it.

The court said its judgment would hold till Parliament amended the law in tune with the recommendations of the Law Commission in its 172nd report on decriminalizing sex between consulting adults in private.

The judges clarified that the judgment will not result in the re-opening of criminal cases involving section 377 IPC that have attained finality.

The court accepted the petitioner NGO’s argument that criminalisation of homosexual acts severely hampered their AIDS intervention programmes.

The NGO had argued that fear of harassment by law enforcement agencies was leading to hurried sex, leaving partners without the option to consider or negotiate safer sex practices. It said the hidden nature of gay groups further led to poor access to condom, healthcare services and safe sex information.

Naz Foundation’s argument was bolstered by a 2006 statistics submitted by National AIDS Control Organisation that eight per cent of the 25 lakh homosexuals in India were infected with HIV, while its prevalence among general population was less than one per cent.

"An enabling environment needs to be created where people involved in risky behaviour are encouraged not to conceal information so that they can be provided total access to the services of such preventive efforts,” said the high court.