Gay sex not a crime, rules Delhi Court
In a landmark ruling with wider social implications, the Delhi High Court on Thursday ruled that ‘gay sex’ between consenting adults was not a crime.
Besides, decriminalising homosexuality 150 years after it was incorporated into the Indian Penal Code (IPC), the court declared that the law was unconstitutional.
A bench headed by Chief Justice A P Shah said: “We declare that Section 377 of the IPC, in so far as it criminalises consensual acts of others in private, is violative of Articles 21, 14 and 15 of the Constitution”. While reading out the judgment, the court, however, said that a person below the age of 18 would be presumed not to be able to consent to such a sexual act.
Section 377 of the IPC, drafted by the colonial British in 1860, has drawn criticism from public health activists as a barrier in the fight against HIV/AIDS as many of these patients did not come out of their closets fearing penal action and suspicion.
“Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination.
This was the ‘spirit behind the resolution’ of which Nehru spoke so passionately. In our view, Indian constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are,” said the 105-page judgement justifying the permission to allow gay sex in India.
Extensively quoting Jawaharlal Nehru in his ruling, 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).”
