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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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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.
Iam afraid one day HC will legalize rape as it is also individual thirst and freedom. Why cant judge Start a Prostitution centre near the court so that the so called individuals can enjoy their freedom.
Congratulaions High Court has declared Gays relation as legal, now Supreme Court and parliament should make it compulsory. I think this is the best way to control the population. Before doing so they should keep in mind the percentage of Gays and Lesbians for recruitment in government jobs, especially in the armed forces and of course in parliament. Mera Bharat Mahan. Jai Hoooooooooo.
Thank God for this judgement. Our legistative is too chicken to abrogate discriminative archaic laws.
Its good to see INDIA progress, to cum out of the nutshell of narrow-mindedness.its not about turning western...its about being more liberal.There's no harm in being homosexual...its just a matter of choice. and now there's no law confining your sexuality.as far as the STDs go...one jus has to be responsible n cautious!
The verdict given by HC recognizes ppl with different sexual orientation and their right for equality in society.Though gay ppl constitute minority in this country,they do deserve their righteousness.The judgment never asked anyone to practice homosexuality,but stated that it is not a crime if it is consensual between adults.Judicial system do not worry about once caste,religion,faith and culture and we should be happy that our judicial system is based on human values rather than the concept of religious text else for most of our petty mistakes and crimes we would have been killed(Which ever religion it might be).Our Judiciary sees through the prism of equality of mankind without any reservations.If people are worried about nature's law please do understand that it is also part of nature's law,as the nature is not confined to a small notebook of rules.
As a student of political science I wast taught that laws are made by parliament and interpreted by Judiciary. I was told about directive principles and fundamental rights. Unfortunately, Judicial Activism was missing from the syllabus as they didn't anticipate about it at least in the context of 'Freedom to Abuse Body Parts'. Life never prevents from learning new things. Thanks to Honorable High Court Judges for adding a new dimension to our thoughts and deeds.One Urdu poet has said:Bus ek qadam utha tha faqat rah-e-shouq me,Manzil tammam umr mujhe dhoondhti rahi.I made only one step in the pursuit of my desire,My destination kept searching for me all my life. Homosexuals are winning the battle of wit!
Indian should have legalised gay since it is illegal as per bible
Am I the only one who doesn't see the obvious here? According to the judgement non-vaginal sex is still illegal. So, what they are saying is that oral sex is ok, but anal sex isn't? If so, how is that a real victory?P.S. Wow Chandra Sekhar...You sounds like a total loser. Do you realize that it was the British that made homosexuality illegal in India? And I see your location is San Jose, California. If the west is SO evil, I suggest you pack your bags and head back to India, preferably into some forest where you will remain undisturbed by the effects of globalization and liberalism. You are nothing more than an ignorant, self-righteous fool. Oh yeah, your grammar sucks too dumbass!
I see people like Jay need to revisit Khajuraho Temple and discover if the sex shown is between Man and Man or Man and Woman... mr. Jay seem to assume kamasutra is never shown or preached between Man and Man or between Woman and Woman..I guess he better leave his wife to his neighbor and seek the man next door... could end up as suckers
There is no mention about Homosexuals in Kamasutra. There is no statue of Homosexuals in Khajuraho or Konark.Those who are saying these to justify Homosexuality have no knowledge at all.Homosexuality is a mental disease. It can be cured, as they used to put all Homosexuals in the mental hospital in the Soviet Union.India should do the same. This Delhi judge is a shame for the Judicial system of India.Of course GAYS are not criminal, those who suffer from AIDS or Malaria are not criminals, but they are certainly ill.
Halooi think it is most sameful decision happen in india. do you thik that a man can be compensated with woman. what about our culture, vedas, religion. were we ar going and what we are going to do. only bad things vi can adopt from west: indian have inferior comlex.biogamy in muslim is also shame and source of population ?DR.Gill
This is indeed an amazing move for the sexual minority. This is a great chance to educated people about homosexuality..to educate that it is not a Disease nor it is a Culture adapted by today's youth from the Westerners!!
This is a positive step by the court. The government has no right to decide what is right or wrong. Sexuality is a personal choice (as long as no minors and its consensual).I personally, find homosexuality as unnatural and it should NOT be encouraged. Having said that, this is just my personal opinion. And in a free country like India, others should have complete right to exercise their sexual freedom.
Modi and Vajpayee can legally get married.
now rahul gandhi can openly marry with a gay
They will be the happiest couple now. :-)
It is time for judges to control administration of country.Shame moily and azad who got backtracked by vote bank. Justice Raghupathy should also take action on congress backed corrupt minister.
How about all those who are over 18 , The so called adults can freely have sex without marriage, anyone can have sex by paying for why call it prostitution, how about group sex... these thing will soon follow...parents whose kids bringing this western culture into their homes should realize that their Khandan will flourish with aids and HIVs..beware now we need to check before we fix any marraige alliances if that family has any Gay and then decide.
Indian homosexuality is not a novel concept my dear 'Vedicist'. One of the most ancient texts that talk about homosexuality is of course the Kamasutra. The temples of Khajuraho are full of them. We didn't have the Brits meddling then, did we?You can take the battle to the streets .. for mass mentality is what you have, with a self-professed dubious sugarcoat of 'culture'. You may reply to my post if you're cerebral enough to understand what I mean.
The court has done the right thing. Homosexuality is highly attributable to genetics as per the latest studies. Homosexuality is seen in nature and is not a crime to be punished, but is a minor medical problems of the brain development that we have not yet understood. For a thing that is beyond their control, the persons involved should not be punished and section 377 is out of our ignorance like the concept of God. At the Jehangir Hospital in Pune,in April 2009 a child was operated on as it had both the male and female, sexual organs indicating that these are problems created during the development of the fetus. The latest thing is that in many cities girls are seen hiring detectives to verify whether their boy friends are homos or not. Many homos will marry to cover up their genetic orientation to homosexuality.
With due respect to the HC, I beg to differ and would like to look at Homosexuality as an psychic problem, if at all it is anything. What it needs is treatment and not unlimited freedom. It is has nothing to do with individual freedom in a civilised society. If freedom is the criteria for legalising homosexuality, then on the same lines will we also legalise the freedom of willing heterosexuals to have sex at a place and time of their choice without any concern for what others feel about it? Afterall only human beings are conscious about bolting the door and putting the lights off, not our co-inhabitants of this beautiful world! One more thing….There are plenty of animal headed or bodied Gods and Goddesses in many mythologies. Given this fact, can we afford to be so much progressive as to legalise "freedom" of any individual to have a try at having more of such figures in the present world? In any democratic and secular society there can only be limited freedom, for collective good.
Its a welcome judgemnet given by Honb. Delhi HC . it will go a long way and will end all discriminations faced by LGBTI group.
This is the darkest day in the history of Indian sub-continent.This moves is against healthy norms of civilization and all religions.There are very few things common in all religions and philosophical systems and homosexuality is one which is declared/considered a sin and pestiferous.In today's socalled modernized world,the contrast between true and false in the matters of theology have been foolishly atteuated to gain some kind fo selfish interests,may it be mere publicity.In the history of civilized world gross and material conceptions of religion are not only natural but indespensible and through intellectual evolution people become prepared for higher and purer conceptions.Its also true that superstitions and illusions hold together the whole fabric of humanity/society.The courts cannot/should not neglect what is layed down in the scriptures and religious dogmas.Legalizing Gay-sex is going to be biggest curse to the nation and weaken the civility/decency of society.
WE ARE DISTURBING THE NATURE NOTHING ELSE.