Why Delhi high court decriminalised gay sex

  • Rocky Soibam Singh, Hindustan Times, New Delhi
  • Updated: Dec 12, 2013 01:27 IST

In July 2009, the Delhi high court had legalised homosexual acts between consenting adults in private, by partially declaring Section 377 of the Indian Penal Code (IPC) unconstitutional and a hurdle in the fight against HIV/AIDS.

The section criminalises voluntary carnal intercourse against the order of nature with any man, woman or animal and prescribes life imprisonment as maximum punishment for such acts.

The court held the provision violated the sexual minorities’ fundamental rights to life, liberty, equality, and discriminating between people on grounds of sex. In its operation, the section ended up unfairly targeting a particular community and had the effect of viewing all gay men as criminals.

“Inclusiveness” was a major tenet of the Indian Constitution and those perceived by majority as “deviant” should not be ostracised, the court had held. Discrimination on the ground of sexual orientation was impermissible under the law.

The court had also accepted the view that criminalisation of homosexual acts severely hampered HIV/AIDS intervention programmes among this community.

Questioning the relevance of Section 177 in contemporary times, the court said the law framed in 1860 was based on a conception of sexual morality specific to the Victorian era.

The HC had also rejected the Union home ministry’s argument that homosexuality was a mental disease and maintained it was “just another expression of human sexuality”.

The verdict had implications for heterosexuals also, as all consensual sexual acts of adults in private, including oral and anal sex, stood legalised.

But while delivering the judgment, the court had also held that it would hold till Parliament amended the law in tune with the recommendations of the Law Commission in its 172nd report on decriminalising sex between consulting adults in private.

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