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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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Delhi High Courts judgment on homosexuality is welcomed by some groups.To them it is a victory over their fundamental rights. But to me it is most tragic and unfortunate.Ours is a land of great culture and heritage. This judgment naturally hampers our culture. In the name of fundamental right we shouldnot go to any extend.Our Constitution provides us the fundamental rights with some noble purporse. We must use it against injustice rather than indulging in such silly affairs.If we cannot protect our culture atleast we shouldnot destroy it.
Mr d bose your comment is very logical and i agree with you
Since when does living ones life become the same as killing an human being. if you read the religious texts of hinduism, you will realize homosexuality was rightly accepted widely in ancient indian society. It was the mughal rulers and the victorian laws which enforced the concept of only male and female. As a result, they have ruined hundreds of thousands of lives.
I can not criticize the judges for the judgment but opinion of mine and many are against the judgment. If this trend of judgment follows in criminal cases, a time may come when crimes also become fundamental right of criminals. My argument may look funny, but it has partially become fundamental right as crime cases are delayed and criminals get bails saying he is innocent till proved guilty. Time/days/years for proving guilty has no limit also.B S GANESH, BANGALORE
Mr n krishna what da heck is your problem how can you target muslims like that ppl like are rspnsibl 4 spreading nonsense abt muslims can you provide any damn authentic survey conducted in arab world and your mantra darwimsim itself is a fabrication and twisted lies plz answer this can u plz tell me if life came to existance by mixing of certain chemicals by chance then till now have u created a single cell that way
Mr anand and the likeyour extreme hatred towards muslims is very clear from your comment . Our prophet was the most noblest man ever born on earth. The bride whom you refer to be a 9 yr old her age at the time is a controversary no one is sure about it and you have no right to blame our critisize our beloveand mr anand one day the whole world will be ruled by muslims and im not prophesing it . Its a challenge from the muslim worldi pray to allah that you live up to that time
Dear Mr indianyou think that gays should have freedom and who ever protest should be exiled . But you fail to realize that this matter is not only religous but also cultural and traditional. Freedom should definately be limited by walls of rules. Dear indian britain had conquered india so they must have had freedom to rule us rightso Mr gandhi must have had gone somewhere else and should also have had taken his bretheren because britain were simply using there freedom by ruling us
HC judgement is absolutely wrong it goes against laws set by nature . Such judgements cannot have any place in indian society . It will lead to confusion and destruction of our youth,traditions and social network
Truly a historical benchmark, I couldn't me more proud to be an Indian than now! Giving equal rights to everyone is what the Indian Constitution aims for; bravo Delhi HC, bravo!!
If the concept of natural justice is infallible and universally valid, then how can any man-made institution , whether a Court of Law, Parliamnet or any country's Constitution itself, declare unnatural acts as fundamentally right.In my opinion the HC judgement as well as Article 27 of the Constitution are violative of Natural Law and that is the Fundamental Law.
do not worry , this shows we have to practise joga every day other wise the world so created will short lived.
Now that christen and muslim religoius leaders are protesting against this decision, we may expect Shah banu type reversal step by GOI to protect its vote bank.To hell with individual freedom, what matters to the congress party is remain in power,by hook or crook
What the judgment shows the people from west trying to change to Indian tradition and they are amazing the religions Vedas, rules, but we willing the west tradition and this shows it openly WE ARE OUT OF THE RING and the famous quote that TODAY'S STUDENTS ARE TOMORROWS PRESIDENTS, ENGG,DOCTORS, SICENTISTS
There is no trouble in two people coming together to lead a normal life without making life miserable to one another. However our laws give too much importance to religion. The state is formed to deal with persons not religion. If any religion is against this judgment, they should be asked to deal with these persons in a way most suitable to them, instead of making the state a party to their dominance.
Technology can produce artificial sperm, or even create offspring from 2 females. So men can become redundant. We have the technology to create artificial wombs to create babies in. So women are also as redundant as men. Artificial wombs in which embryos can grow outside a woman's body were developed, a breakthrough in treating the childless. Scientists have created prototypes made out of cells extracted from women's bodies. Embryos successfully attached themselves to the walls of these laboratory wombs and began to grow. Women with damaged uteruses and wombs will be able to have babies for the first time. Artificial wombs capable of sustaining a child for nine months will become reality in a few years. Combined with cloning technology, artificial wombs raise the prospect that gay couples could give 'birth' to their own children. Women would no longer need maternity leave. Men may even disappear due to the decay of Y chromosome, in about 5000 generations.
Finally India has struck down a draconian, British-inspired, 19th-century, Christian law. Remember all you good Indians, before the British came, conquered and despoiled the culture and land, there was NO LAW against LGBTs and/or homosexuality. Hindu culture and civilization had long recognized the exitense of the tritiya prakriti -- the third sex, now called LGBTs. It is mentioned in Kamasutra. There are depictions of it on the Kajuraho Temple. There is no negative mention of it in the Vedas and ManuSmriti, unlike in the desert religions of Christianity and Islam and Judaism. Therefore it is not at all surprising that christian and muslim religious leaders, who are leaders of minority religions and not of the majority 85%, speak ill of the High Court's decision. To the extent that any Hindu leader criticizes it, it is because he is ignorant of his own culture and history, something that Lord Macaulay wanted to happen. Congratulations on breaking the chains of colonialism.
Totally agree with you, lets get back to our roots, the Vedic Principles, and will be the most inclusive society; need to abandon the imposed stuff especially Macaulay's children
Societies are ruled by tradition and culture and homosexuality is against this all. It will stop the human development and progress, the purpose of life will be lost. Freedom should be governed by rules. A beautiful garden has beauty because of its walls; if it is left open it will become heap of garbage.
You are always free to move to the great beautiful garden of Pakistan, just like your ancestors. It has lots of walls to keep everybody in their place. The perfume from the beautiful garden of Pakistan is overwhelming India. Feel free to take any of your religious brethren with you.
so according to the christian theorey, GOD created adam
HEY BILL, DONT U DARE COMPARING THE FANATICS IN TALIBAN WITH THE HINDU'S, U IDIOT, U HAVE NO IDEA WHAT RAMA WAS AND POSSIBLY DONT KNOW UR OWN FATHER TOO! I DONT THINK U ARE "REAL PEOPLE" AND TRYING TO GO BEHIND INDIAN AGYS, BE CAREFUL, THEY WILL BE BEHIND U SOON, WHICH WAY DO U GO!!ManBy: Bill Bray | Thursday , 2 Jul '09 17:47:42 PM Reply | Forward It's about time. India being the world's largest democracy really needed this change to come about. India's religion is beautiful but we no longer live in the mythological time of King Rama. This is the real world and we are real people. We should move forward and not try to revert out culture to medieval times like other fundamentalist groups such as the Taliban and it's murderous terrorists who feel that a woman's body is so shameful that it must be hidden from view. GAYS IN INDIA UNITE. We here in the United States are behind you all the way
By providing the basic rights to the gay community the people of India has finally done justice. Every person is equal before law and the law does not discriminate anyone.This law is a new kick on the rear side of the sanghi and taliban like religious fanatics.
God did not sanction homo behaviour. If he did, he would not have created Adam and Eve, he would have created Adam and Steve.
God created all the combinations of Adam and Eve, Adam and Steve, and Ada and Eve. Don't just copy the utterances of Western religious conservatives. Have a mind of your own, and read the Vedas and Manusmriti.
This is the most natural way to control Indian Population and haters instead of concentrating on gays, concentrate on pedophiles- In India traveling in bus or standing in a crowded area (almost everywhere) is a disgrace on human right.
How many of these 'activists' who 'support'gays are willing to walk the talk andlead a high risk sexual life? None of thesehypocrites who spoil the health of otherswill volunteer. It may be fair to treat them as delinquents as well.
Inclusiviness is the essence of our democratic polity.A social reality which has persisted down the ages was ironically denied so far.It was kept relegated to the closet.It was something not to talk about and even if talked about,it was something to be made fun of and laughed about.The Delhi High court courageously by invoking Nehru and the broad principles of our constitution bestows respect and freedom of choice to gays.It is a visionary judgement.It refuses to be tied down by double standards and hypocrisy.It acnowledges reality.It is a victory for democracy.
This judgement is in line with forward thinking world and welcome at that.Now let some one take up cause for the prostitution to be legalised so the proper education, health care and wealth share is there for these sex workers.