Zeenews Bureau
New Delhi, July 02: Delhi High Court, in its path-breaking judgement on Thursday, legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.
In a courtroom packed with around 100 people, half of them activists, Chief Justice Ajit Prakash Shah and Justice S Muralidhar sought changes in Section 377 of the Indian Penal Code (IPC), saying it violated Article 21 of India's constitution promising all citizens equality before law.
In a 105-page judgement, the judges said that Section 377 should be amended and any sex between consenting adults must be legalised. This must not apply to those under 18 years.
"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 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". It however clarified that "by adults we mean everyone who is 18 years of age or above".
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.
While allowing the PILs filed by an NGO, Naz Foundation and others fighting for gay rights, the Court 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.
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.
Once the order was passed, many gay rights workers from India and abroad broke into tears in the court while others shouted in joy before realising that their action would amount to contempt of court.
They quickly trooped out screaming "We have won, we have won!" and "Justice has prevailed".
Outside, boisterous gay activists hugged one another and burst into noisy celebrations, which were later extended to the Jantar Mantar observatory complex in the heart of the national capital.
The reaction from Hindu, Muslim and Christian leaders was swift and bordered on anger and disbelief, with some threatening mass protests if parliament legalised gay sex. Gay activists, however, voiced confidence that the government would do that in the wake of the court edict.
According to one official estimate, there are around 2.5 million males who indulge in gay sex.
Homosexuality is legal in 150 countries including South Africa, China, Nepal, Australia, Canada and Argentina. It is illegal in many others such as Pakistan, Afghanistan, Iran and the United Arab Emirates.
First Published: Thursday, July 02, 2009, 11:12