Delhi high court (HC) on Thursday declared as “unconstitutional and arbitrary” the 149-year-old law that criminalises consensual homosexual acts among adults.
In a significant victory for gay rights, the Delhi high court (HC) on Thursday declared as “unconstitutional and arbitrary” the 149-year-old law that criminalises consensual homosexual acts among adults. However, the court said that section 377 of the Indian Penal Code (IPC) will continue for non-consensual and non-vaginal sex involving minors.
“The court’s decision marks respect for human rights — irrespective of one’s sexuality and sexual orientation,” said Anjali Gopalan of Naz Foundation, the NGO that had filed the PIL in 2001, on which the court sounded its ruling. “Section 377 justified social, moral and legal repression of homosexuals. It was like being told ‘you are criminal, because of who you are’. All this should change now. Homosexuals can now live with dignity and pride,” said gay activist Ashok Row Kavi.
Going beyond decriminalising homosexuality, the Delhi HC has widened the ambit of article 15 of the constitution, which prohibits discrimination on grounds of sex, religion and caste. It has expanded the term sex to include sexual orientation. This means a person cannot be discriminated against on grounds of sexual preference.
Former additional solicitor general KTS Tulsi said the judgment, unless overruled by the Supreme Court, permits same-sex marriage, and a homosexual couple could even adopt children. “As it stands, section 377 denies a gay person the right to full personhood which is implicit in the notion of life under article 21,” said the HC bench, comprising chief justice AP Shah and justice S Murlidhar. The section carried a maximum punishment of life imprisonment for homosexuality. “We clarify that our judgment will not result in the reopening of criminal cases involving section 377 that have already attained finality,” the court said.
Underlining the significance of the ruling on AIDS control, Charles Gilks, UNAIDS country coordinator in India, said: “We hope this judgement will send a positive signal to many other countries, especially in south and West Asia, where sodomy is punishable by death.” The order, however, came under sharp attack from religious and rightwing groups, although most political parties, including the BJP, played it safe by not taking a stand. Turn to p18
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