UPDATE: India: Court decriminalises gay sex
The Delhi High Court's ruling that homosexual sex among consenting adults is not a crime is expected to boost an increasingly vocal pro-gay lobby in India that says the British-era law was a violation of human rights.
The current law bans "sex against the order of nature" and is widely interpreted to mean homosexual sex in India.
Gay rights activists hailed the court verdict as historic and many supporters of homosexuality were seen celebrating with sweets and smearing each other with vermilion.
"We have finally entered into the 21st century," said Anjali Gopalan, leader of Naz Foundation, a leading health and gay rights lobby.
The ruling applies to all of India, but can be appealed at the Supreme Court.
Gay rights activists also argue the law, framed in 1861, was an impediment in fighting against HIV/AIDS because many homosexuals refuse to come out in the open fearing harassment by authorities.
"Consensual sex amongst adults is legal, which includes even gay sex and sex among the same sexes," said a two-judge bench of the court.
The verdict said the current law will apply in the event of sex without consent.
Petitions to change the 1861 law have so far been firmly rejected by the government but there has been some softening up on the stand in recent years, with officials saying the possibility of revoking the ban was being discussed.
Thursday's court verdict came after nine years of legal proceedings initiated by India's gay groups.
Under the current law, homosexual sex is punishable by up to 10 years in jail.
03 July 2009
129. The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, ”Words are magic things often enough, but even the magic of words [WP(C)7455/2001] Page 103 of 105 sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The 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 the near future.” [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65].
130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest 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.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the 'spirit behind the Resolution' of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual. [WP(C)7455/2001] Page 104 of 105
132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
JULY 2, 2009 S.MURALIDHAR, J