Gay sex not criminal anymore in India

New Delhi: In a breakthrough judgment, the Delhi High Court on Thursday legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.

Participants at the gay parade in New Delhi/ Photo credit: IBNLive

However, Section 377 of the Indian Penal Code, which criminalises homosexuality, will continue for non-consensual and non-vaginal sex.

"We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution," a Bench comprising Chief Justice A.P. Shah and Justice S Murlidhar said.

The High Court said 'the provision of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors'.

The court clarified that "by adults we mean everyone who is 18 years of age or above".

It further said that this judgment would hold till Parliament chooses to amend the law.

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," the Bench said in its 105-page judgment.

The UPA was initially in favour of repealing Section 377 with Law Minister Veerappa Moily calling the law “outdated.”

But the Centre later backtracked with both Moily and Health Minister Ghulam Nabi Azad calling for “consensus.”

Section 377 criminalises “carnal intercourse against the order of nature,” a phrase interpreted to ban homosexuality.

The petitioners Naz Foundation (along with an activist group ‘Voices Against 377’) argued that the law violated the constitutional rights of homosexuals and that the section should be “read down” to exclude “consensual sex between adults” from its ambit, in effect decriminalising homosexuality in India.

The previous UPA government had opposed the petition. Former MP B.P. Singhal, who “intervened” to oppose the petition, said that if the HC decided to “read down” Section 377, he would go to the Supreme Court in appeal.

Chronology of the eight year-long legal proceedings:

• 2001: An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of gay sex among consenting adults.

• September 2, 2004: Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.

• September 2004: The gay right activists file review petition.

• November 3, 2004: The HC dismisses the review plea.

• December 2004: Gay rights activists approach the apex court against the order of the High Court.

• April 3, 2006: The apex court directs the HC to reconsider the matter on merit and remands the case back to High Court.

• October 4, 2006: The HC allows senior BJP leader B.P. Singhal’s plea, opposing decriminalising gay sex.

• September 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. The Court refuses the plea and final argument in the case begins.

• September 25, 2008: The gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.

• September 26, 2008: The Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.

• September 26, 2008: Centre says that gay sex is immmoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.

• October 15, 2008: The High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

• November 2008: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

• November 7, 2008: High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.

• July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults.