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 A P 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".
Trivia on Homosexuality 2009 Legalised in Norway and Sweden
2009 Criminalised in Burundi
2003 Legalised in Iraq
1862 Legalised in Mexico
1967 Legalised in England
Death Death sentence in Iran, UAE, Saudi Arabia, Yemen, Syria.
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.
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)".
He said Nehru was of the view that the House should consider the resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that resolution.
The Bench was critical of the provision of section 377 of IPC holding that "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."
"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.
"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.
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.
"We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual
orientation is not permitted by Article 15".
The Bench pulled up the government for its stand that judiciary should refrain from interfering on the issue as it
pertains to legislative function coming under the ambit of Parliament.
"We are constrained to observe that the submission of Additional Solicitor General reflect rather poorly on his
understanding of the Constitutional scheme.
"The judiciary is constituted as the ultimate interpretor of the Constitution and to it is assigned the delicate task of determining what is the extent and scope of the power conferred on each branch of government," the bench said.
"A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take it out of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problem," the Bench said quoting a Supreme Court judgement.
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 High Court judgement assumes importance as the Government was still grappling with the option to scrap section 377 from the statute.
When the verdict was reserved on November 7 last, the previous UPA government had vociferously opposed scrapping of section 377 of the Indian Penal Code which prescribes punishment upto life imprisonment for indulging in unnatural sexual acts.
There were contradictions within the Government as the Home Ministry had opposed scrapping of section 377 while Ministry of Health came out openly in support of the gay rights activists.
The Government later sidelined the stand of the then Health Minister Ambumani Ramadoss and opposed the PIL by describing homosexuality as "the most indecent behaviour" in society.
The Centre had submitted that gay sex is immoral and reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
"Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised in the country," the government had contended and added that allowing gay sex would pose a health hazard to society.
The Centre had said that homosexuals comprise only 0.3 per cent of the population and the right of rest 99.7 per cent of the population to lead a decent and moral life in society would be violated if such behaviour (gay sex) is legalised.
The gay rights activists had contended that the government is infringing upon their fundamental right to equality by criminalising homosexual acts on the ground of morality.
"The Constitution gives fundamental right to equality and it prohibits discrimination on the basis of sex. But the rights of 25 lakh homosexuals in the country are being violated," they had contended.
Earlier, the government had put a contradictory stand on the issue with the Home Minister of the then UPA government favouring the retention of the penal provision for homosexual acts while the Health Minister opposed the enforcement of Section 377 in cases involving consenting adults.
But when the day-to-day hearing began on the case, the government set aside the stand of the Health Ministry and opposed the plea of gay rights activists.