New Delhi: In a victory for gay rights activists, the Delhi high court on Thursday, legalised homosexual acts among consenting adults holding that the 149-year-old law making it a criminal offence is violative of fundamental rights and not punishable.
“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.
Read the Delhi high court ruling
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 upto 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 ruling has brought cheers to the gay community and rights activists who described it as a “progressive” move which will change their “level of dignity”, but religious leaders strongly disapproved of the judgement.
The activists, who formed an organisation ‘Voices Against Section 377´ to fight for gay rights, said the judgement will give a “new lease of life to ‘Lesbian, Gay, Bisexual and Transgender (LGBT)´ persons who have “all along suffered humiliation”.
“Today’s judgement changed the level of dignity for us. It reflects the pride that we have in diversity. It is about equality and it has brought out a very new understanding which will take things forward,” Sumit Bouth, an activist of Voice Against Sec 377, told reporters here.
Anjali Gopalan, the Director of Naz Foundation which filed the case in the High Court, said that the judgement indicated “a change in attitude” towards homosexuals.
However, religious leaders were not so enthusiastic about the High Court judgement which legalised gay sex among consenting adults.
“It is absolutely wrong to legalise homosexuality. If the government attempts to scrap the Sec 377, we will oppose it strongly,” Ahmed Bukhari, Shahi Imam of Delhi’s Jama Masjid said.
All India Muslim Personal Law Board member Maulana Khalid Rashid Firangi Mahli said that homosexuality is not allowed by any religion.
“It is against all religions. It is against the culture of Indian society. We feel there is no need to legalise homosexuality. This practice is unnatural. It should continue as a criminal act,” he said.
Father Dominic Immanuel said that churches have no objection to decriminalising homosexuality but it should not be legalised.
“We have no objection to decriminalise homosexuality because we do not consider these people as criminals,” Immanuel said.
However, Gopalan sought to dismiss criticism of the religious groups, saying there are people in every religion who are homosexuals. “What religious groups are saying is wrong. There thinking can change,” she said.
She refereed to Vatsayan, who wrote ‘Kamasutra,’ and said the book has a mention about homosexuals. “Even sculptures depicting homosexuality can be found at Khajurao indicating that homosexuality is a global phenomenon,” she said.
Gopalan was of the view that today’s High Court judgement is just a beginning and that there are more battles to be fought. “The objective is that this group should get the same right as others have in the country,” she said.