Delhi HC legalises gay sex between consenting adults

New Delhi, July 02: Delhi High Court, in its path-breaking judgement on Thursday, legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.
In a courtroom packed with around 100 people, half of them activists, Chief Justice Ajit Prakash Shah and Justice S Muralidhar sought changes in Section 377 of the Indian Penal Code (IPC), saying it violated Article 21 of India's constitution promising all citizens equality before law.

In a 105-page judgement, the judges said that Section 377 should be amended and any sex between consenting adults must be legalised. This must not apply to those under 18 years.

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

It further said that this judgement will 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.

While allowing the PILs filed by an NGO, Naz Foundation and others fighting for gay rights, the Court clarified that "its judgement will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality"

It 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 Chief Justice writing the judgement for the Bench, said.

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