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"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, said, "section 377 denies a person's dignity and criminalises his or her core identity solely on account of his or 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 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 would 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.
"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.
The controversial law on homosexuality goes back 149 years when Lord Macaulay introduced the section in the IPC, making carnal intercourse punishable.
The High Court in its judgement said, "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," Justice Shah writing the judgement for the Bench said.
It clarified that "its judgement will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality."
The High Court, while allowing the PILs filed by an NGO, Naz Foundation and others fighting for gay rights, ruled out the government's contention that decriminalisation of homosexual acts would lead to spread of HIV virus.
"There is no scientific study or research work by any recognised scientific or medical body or for that matter any other material to show that any casual connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS," the Bench said.
It rejected the contention of the Government that gay sex is "immoral" and homosexual comprises only 0.3 per cent of the population and the rights of more than 99 per cent population cannot be compromised by legalising such behaviour.
"Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view," the Bench said.
The Bench 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 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)".
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You’d think in a country with so many urgent and crippling problems (unsustainable population growth far surpassing economic growth, crushing/worsening poverty, inadequate provision of healthcare/education, degrading notions of social status based on ludicrous religious dogma, a national infrastructure almost at breaking point, widespread corruption, disgusting standards of personal hygiene, soaring rates of diabetes/heart disease, environmental degradation, choking pollution, climate change set to render vast swathes of the country uninhabitable, almost certain revolution in the next 50 years) the gay haters who have commented here would find better causes to occupy them. The greatest irony is that the UNNATURAL SEPARATION OF MALES AND FEMALES in India is clearly INCREASING the incidence of homosexual behaviour. It’s time that India freed itself from the chains of backward social convention that has bound it for too long. Let people live how they want to and love who they want to.
A lot needs to be thought over before making such derogatory statements ! Ladies
This is a grand folly. In one stroke, thepeople who gave this verdict have becomeunpopular with all religious communitiesand other groups who can plainly see theunnatural in gays.
We can't solely find the flaw with the high court. The government on its part also could not project its case in a logical and proper manner. Different ministries kept on circumventing each other. All this helped the Homosexual's cause. Now all that we can do is to either wait for the supreme court intervention or the government to pass a law to nullify the effect of judgement. Till that time KEEP YOUR FINGERS CROSSED.
Sexually antagonistic selection is an aspect of Darwinian evolution in which genetic factors spread in the population by giving a reproductive advantage to one sex while disadvantaging the other. This is true among the muslims where the men are seen mostly homosexual. Studies have found that females in the maternal line of male homosexuals were more fertile than average. Muslims men in Northern Kerala abducting boys for homosexual purposes are very common. Arab men have four wives, but they recruit a ‘Kundan’ or a young Kerala muslim boy as his driver and use him as his sex toy and this has also resulted in more job opportunities for Kerala muslims in the Gulf. This type of evolutionary behavior is in line with that was previously found in insects, birds, and some mammals. The male homosexuality with increased female fertility is evolutionarily speaking, is not a detrimental trait and fascinatingly, the whole population shows a very high growth rate as in the case of muslims.
all the muslims who are screaming here against the gay rights are so pathatic. they should remember that their own prophet was a paedophile!!. he raped his 9 year old child bride. being gay is much better than being a paedophile.
Look at the real reason behind this. Even the HC judicial system in India is sold out to the west(US) controlled business, market, investors. All these gay things are sponsored to promote selling and buying at the end. USA is the inventor of these economy/market methods. Look at their interest and reaction to this judgment and you will find how jubilant they are. Check with all sold out Indian TV channels how they are celebrating it. People who are spending time here to support this judgment are waiting for a big return from their investment in Indian market.
This is all our own created, many people in past generations kept pushing for baby boys and not baby girls and now the time has come when these many boys have nothing else than to play with but their toys. what past generations did (pushed have baby boys) was against nature and what this generations is doing (pushing boys together) is against nature. It will balance out ...............
Having championed the independence of the Judiciary,it is within the remit to have repealed Article 377, to confer equal rights to the consenting adults. However I fail to see how it has become Historic, if any it is degrading step backward and is antithesis to the grains of Human values. I would equate gay rights to the Sharia Law,which is prevalent in India, both are repulsive and abhorrent.Time for obfuscation and misrepresenting facts are over, it is time to push for uniform civil code and Parliament should push of legislation with immediate effect.The premise of human rights can not be used to divide communities.
Freedom fighters gave their lives so that we others could live in a openminded and democratic system, but some of our countrymen sincerely do not know the meaning of democracy. They would like to impose things on others, but would not expect others to do the same.
I have hit a raw nerve thus the abusive tirade. You have lost the argument Mr Ignoramous.
homosexuality is a mental disorder and moreover it is a sickness created by western culture and homo media. A disease can be removed only through treatment rather make it common in the name of handful sick people. Even animals spares same sex, yaar. It is too much.
I DID NOT KNEW THAT WE HAD ANTI-FREEDOM NUTCASES IN OUR COUNTRY.
Humanity at the lowest of low! A society at the lowest of low!. The sentences "Freedom of Expression", "Freedom of right" are used with out people realizing its essence and implications. Forget about any law... How many of those supporters of homosexuality considers this 'A son raping his mother, Or both having consensual sex. Let us go ahead 'Son and Father', 'Mother and Daughter' with consensual sex. Wow what a system, What a Society! And you know no body should utter a word, Why? See it is their freedom. May the supporters of this freedom of expression would like their house holds(Mother, Brother, Father, Sister, Wife, Husband, Son, Daughter) to be part of that. All those who bark in the name of "freedom of expression" and "freedom of right" better brainstorm, may be you will get a new idea about freedom. A society stands on three pillars, viz 'Social','Political', and 'Economical' Systems. All of these of the west (Read US) have collapsed or collapsing. Let us imitate them and ha
The Soviet Union used to put all Homosexuals in the mental hospital.India should do the same. If CPI(M) cannot do that just wait for the NAXALS.
India is indeed a country of freedom lovers but ayotallah and ashok singhal likes are not pleased.
ST u r soo stupidd..u actually think that being hmosexl and incest is co related???? hahhahaha i can only laugh at uneducated people like u
Sir, for the first time we feel that our nation is on the right path. We were normally influenced by religious bodies, but now the law is taking its correct course. Indian is a country of freedom lovers, but sanghi and taliban like fanatics were trying to surpress everyone by mixing religion and politics.
Now that the damage is done, Hope the ruling stays within the precincts of Delhi itself. This way we can be assured that all Homos stick to the capital itself and not spread themselves around India. From the current trend of aping west, we are not far from days when Homo Marriage will be legalised in this soil. On a second thought IPC 497 must be revised too.
Anil like people are the stooges of RSS, in every article they try to accuse Congress, Muslims n all.If Anil like communal animals have guts, they will do service to the community, they belong to, they must take up removing the sex symbols from Khajuraho and like temples. They shall work to eradicate AIDS in Tirupathi, Yadagiri Gutta, RenuKhamba etc.These goons have no agenda but to accuse congress Muslims etc.
People should be allowed to live the way they like. There are hundreds of thousands of males / females in India, from a cross section of society, involving in same sex under guarded secrecy. Let them enjoy the life with their partner even outside, like any other couple.
India is all set to embrace the Western culture. What amazes me that this issue is conveniently being turned into a Hindu-Muslim issue - looks like the chaddiwalas need any, repeat any, pretext to communalize this. So, suddenly, we have all these people turn, pro-gay and Hinduism is suddenly a gay-friendly religion. It's really a shame - is this what we have come to?
The Idea of homosexuality was prompted from the scriptures and scluptors of Hinduism. However if the RSS/BJP leaders look in to this matter it will be a service to a community.RSS/BJP/VHP has been killing the minorities for years but never cared to look into the Trivial issues which are questioning the hinduism are left to rotten, like JOgins issue, Sathi tradition, Dowry issues, spread of AIDS near Pilgrim centres, etc.
victory for anuj
Gay sex is unnatural according to almost all the religious beliefs. But this tendency needs cure and not hatred. Many religious leaders are wanting to help overcome this tendency by counseling. But just ignore and shout down those religious leaders who talk of morality only for the sake of politics of hatred and consolidation votes.