In a victory for gay rights activists, the Delhi High Court today legalised homosexual acts among consenting adults, holding that the 149-year-old law making it a criminal offence is violative of fundamental rights and not punishable.
“We declare Section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution,” a Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.
The verdict, which was described as “progressive” by the gay rights activists who fought an eight-year-long legal battle, added “Section 377 denies a person his/her dignity and criminalises his/her core identity solely on account of his/her sexualities and thus violates Article 21.”
“As it stands, Section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution,” the Bench said in its 105-page judgement allowing the plea of gay right activists seeking to decriminalise homosexual acts among consenting adults which otherwise attracts punishment of up to life imprisonment.
However, the Bench said Section 377 of the Indian Penal Code which criminalises homosexuality, will continue for non-consensual and non-vaginal sex involving minors.
The verdict evoked sharp reactions among religious leaders with Jama Masjid Imam Ahmed Bukhari and Father Dominic Immanuel, spokesperson of Catholic Church, strongly disapproving the decision, saying homosexual acts were unnatural and cannot be legalised. The verdict comes at a time when Government is considering the issue of scrapping section 377. The court said its judgement will hold till Parliament chooses to amend the law.
It clarified that “by adults, we mean everyone who is 18 years of age and above”. Observing that “there is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or disorder and is just another expression of human sexuality,” the Bench was critical of the provision of section 377.
“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,” it said.
“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.
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.
