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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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all the best gays!!!!!!!happy for you not because u got the right but because now u can live without fear, every human being deserves to live life full size in this short span of time!!!!!! i am glad that now u guys are free just like others. It is really a remarkable judgement.
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 to be part of that. All those who bark in the name of "freedom of expression" and "freedom of right" better brainstorm your brain, 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 have the same fate....
The Government and the Courts must also do away with other archaic laws that are not the statute book.
If consent is the only criteria then, boys and girls can also have consensual sex before and after marriage.No teacher or parent can stop them in the name of discipline.The terms like sex out of marriage bond or prostitution of Eunuches are legalised.this hasty judgement will open doors for many problems soon and no one can stop it.we all condemn this decision.
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 to be part of that. All those who bark in the name of "freedom of expression" and "freedom of right" better brainstorm your brain, 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 have same the same fate....
This court announcement has several silver linings to it.a) With same sex marriages, the growth rate in Indian population will come down considerably.b) Since the availability of men for normal marriages will come down, wives will think twice before divorcing their spouses and vice versa. So the divorce rates will come down. c) Doctors' earnings will move up drastically treating HIV and other diseases that go with same sex interludes. So, the overall GDP of the country will go up.
So the HC has to step in as the Congress wallahs do not have the backbone to pass any law itself, which entails in their belief, upsetting their vote bank. And indeed the minority vote bank is upset, for all kinds of hypocritical reasons. Does the majority matter at all in India. Seems not. Hindus get taxed and killed in Pakistan, hindus get taxed and killed in Bangaladesh, hindus get taxed and killed in India by Pakistani terrorists. Any that manage to survive are polished off by the Congress blind "secular" machine. How is a democracy supposed to function? What is the definition of secularism?
About time the world's most populous democracy has legalised what should have been legalised ages ago. What people do in their bedroom is nobody's business. IN the world's more prosperous nations gay sex is legal. Gays cannot be considered second class citizens. This is a good day for India. Now let's turn this country into a gay tourist destination and make the most out of it by encouraging peole who tend to have no children and therefore more disposable income to come here on holiday, spend their money and help us to prosper. God knows we need it!
If a man in your family accepts gay propaganda,has unnatural sex and succumbs to the much greaterchance of contracting HIV, how would you respond?If this person meant something to you, you'd file criminal charges against those who misled him.I hope this verdict is appealed and over-turned.
THE NEXT THING THAT WILL FOLLOW WILL BE QUOTA FOR GAYS OR CALL IT HOMOS FOR GOVERMENT JOBS - PRIVATE JOBS - ARMY - CIVIL SERVANTS - PARLIAMENT - LOCAL ASSEMBLEY . . . . . . WHERE WILL IT END.THIS IS CALL PROGESS OF INDIA . THIS IS WHAT SHREE MANMOHAN SINGH PROMISE IN 100 DAYS . IT IS GIFT TO INDIA AFTER WINNING ELECTION. JAI HIND
- reduction in population over a period of time.- attack on family structure.- more diseases; tax money from straight people should not be used to provide medical treatments for gays as it would violate the rights and freedom of the people with some common sense.- sexual anarchy in society.- rape, prostitution, incest, sex in public, murder, extra-marital sex, and sex before marriage can or will be claimed as one's freedom and right. The courts or the govt will have to legalize all these things as the latest ruling is parallel to all of these activities. All those who support gays must tell us publicly whether they would approve or like to see their father, mother, sister, brother, son, daughter, wife, or husband engage in gay sex. If you cannot accept this then you have no right to claim such a freedom. Homosexuality is a disease that needs medical treatment. They have no other rights.
homo sexual is alowed without mariage ? if so then immoral trafic and prostitutin cannot be treated as crime...
Studies indicate that homosexuality can be attributed to environmental pollution and changes in the brain structure. Brains of homosexual men respond more like a women when reacting to a chemical derived from the male sex hormones. A UK survey of 1,500 fish at 50 river sites found more than a third of males displayed female characteristics. Hormones in the sewage, including those produced by the female contraceptive pill, are indicated as the main cause for this. Neuroscientists found that the brains of homosexual men and heterosexual women were more symmetrical than the brains of heterosexual men and homosexual women. Amygdala, a brain region associated with emotional reactions had also differences. Homosexual men had more connections between their right and left amygdala than did heterosexual men. Heterosexual women had more connections between their right and left amygdala than did homosexual women.
It is very unfortunate
i am a staunch hindu ( and straight) and i welcome this judgement. hinduism is the only religion which accepts homosexuality. those morons who are crying about "divine" laws etc should remember that the same "divine" laws allowed women to be burnt as witches and wrap them in burqas. will the congree accept the verdict?. no way. they will be on their knees to appease the christians and muslims, as they did in the shahbano case. sonia the christian fanatic will not allow the law to be scrapped. congress will speak to the muslims and christians but will not speak to shankaracharya. this is secularism congress style!!
Mumabi High court judgment is not accepting the people. this problem facing at future in india.
India is not a banana republic after all :)
Now the terrorists won't have to attack us any more. Gays are doing the job of destroying India for the terrorists. Seriously, something is wrong with the judges. They have lost their ability to think rationally and make a decision that ensures stability and sustainability of the society and culture. The judges must be removed or asked to engage in gay sex in public- as they approve it, they should practice it- and explain to public why they chose to destroy the society. Freedom has its limitation. Freedom does not mean right to do any crap. If that's the case then everyone can claim that every law violates his/her freedom and rights. A person can claim freedom to have sex with animal, prostitution- as work of choice, and extra-marital sex and rape.Gays will bring hell to our nation. Those who say that we are ignorant because we oppose homosexuality needs to get some good education, medical treatment, and see the truth. You are the most ignorant people on earth.
No, no,no, it is not acceptable.
how does it matter what people do in their "personal" lives?? people in india need to open their minds..i think its great that the court is moving ahead and accepting differnt points of view..evr1 has one life to live..n i think they deserve to spend it theway they want to..so evrybody who doesnt approve can just get lost n mind their business!!
This is crazy, India should have continued maintaining the cultural values for the coming generations, now I feel migrating with our family to the west or staying in India makes no difference.
This is crazy, India should have continued maintaining the cultural values for the coming generations, now i feel migrating with out family to the west or staying in India makes no difference.
Sir, It’s very strange that people can get any of their natural/unnatural behavior a legal protection in India! The criterion giving legal approval for gay deeds by the honorable judicial fraternity may be fully its prerogative. However, the Judiciary while granting legal protection to every one in the society, it should have also taken into consideration the immoral impact influenced by a miniscule (gays) to a larger section of the society. Gays have a perverted, unnatural mind set-up which is against all Divine laws. A moral, upright personality will make a good law abiding citizen. But a legally protected citizen not necessarily will make a good, moral citizen.
Occasions are rare when I find myself in agreement with Mr. Romesh Sharma. However, I fully endorse the views he has expressed in his mail regarding Gay-sex issue.
We are proud of being indian. Culture of India, still it is great. Why they are trying to break it by making this kind of law and destroying our new generation. Sure, all this kind of relationship started from the ancient time. You can see it in the history. If someone has a bad thing in their mind which are sleeping, these law makers and judges like Delhi high court trying to encourage those activities! They have their own intentions but not good for nation and our people.