New Delhi High Court Decriminalises Homosexuality

[Teebs]

Times of India

NEW DELHI: In a historic judgement, the Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian Penal Gay activists celebrate after the Delhi High Court decriminalised homosexuality by striking down section 377 of the IPC, outside the court in New Delhi. (PTI Photo)
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The Section 377 of the IPC as far as it criminalizes gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalizes homosexuality, will continue for non-consensual and non-vaginal sex.

Full text of Delhi HC judgment (PDF)

Any kind of discrimination is anti-thesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.

Our reporter Smriti Singh from the court sketched the rejoice of the LGBT community.

Soon after the judgement, the supporters of the LGBT rejoiced the moment of victory and called it as the "first step to a better future". “Great moment for us, we are hoping that the court will pass an order in our favor, we have kept our finger-across,” she further added.

It is amazing to see, how we have won the battle, said Shivangi Rai, counsel for the NAZ Foundation.

A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The court 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 in its 105-page judgement.

Section 377, a law from the British Raj era, says homosexuality and "unnatural sex" is a criminal act.

While the home ministry wanted the petition to be dismissed, the health ministry supported its contention that section 377 criminalized homosexuality per se, it was obstructing the AIDS/HIV prevention efforts among high-risk groups. Whatever the outcome, this is the second time the Delhi high court will be pronouncing on Naz Foundation’s petition against section 377. In 2004, it dismissed the petition at the preliminary stage stating that “an academic challenge to the constitutionality of a legislative provision could not be entertained.” It further said that when no personal injury was caused to the petitioner by this provision, the petition could not be examined.

The foundation then approached the Supreme Court, which disapproved the manner in which the high court had disposed of the matter. SC observed that when there was a debate on this issue the world over, “where is the question of the petition being academic? We are not able to accept the approach of the high court that it is an academic exercise and there is no personal injury.” Accordingly, in 2006, SC directed HC to reconsider the matter in detail. The judgment is coming close on the heels of statements from ministers on the possibility of a legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBT). If the judgment serves the purpose of decriminalizing homosexuality, the government will be spared the burden of amending a provision laden with religious and cultural sensitivities.

Interestingly, in the new team of law officers appointed by the government, at least two of them — attorney general Goolam Vahanvati and additional solicitor general Indira Jaising —- have publicly supported the demand for decriminalizing homosexuality.

With all the attention going to the fight for LGBT rights in the USA, I thought a positive development in a deeply socially conservative country was worth noting. It's only one state and it's only partial legalisation, but hopefully it's indicative of a trend.

[Molyneux]

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

No problem at all with the first bit, but...dear God, it's illegal to have non-vaginal sex in India? What the hell is wrong with this culture?
Does that prohibition include oral sex? How about masturbation?

[Lonestar]

No problem at all with the first bit, but...dear God, it's illegal to have non-vaginal sex in India? What the hell is wrong with this culture?
Does that prohibition include oral sex? How about masturbation?

It does in the UCMJ, if you're in the US Armed Forces.

[Nieztchean Uber-Amoeba]

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

No problem at all with the first bit, but...dear God, it's illegal to have non-vaginal sex in India? What the hell is wrong with this culture?

Britain.

It remains illegal to kiss in public in India, and this and the vast majority of other sexual prohibitions in India are holdovers from the Victorian colonial era. Almost none of this prudishness is native to Hindi culture. Hell, some of the Hindu holy books have homosexual sex in them.

[ray245]

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

No problem at all with the first bit, but...dear God, it's illegal to have non-vaginal sex in India? What the hell is wrong with this culture?
Does that prohibition include oral sex? How about masturbation?

It's a extremely sad thing when politicians in India has more balls to repeal that penal code while Singaporean MP are still harping on the idea that we need to appeal to the conservatives.

Fuck them. Hell, even the relatively few members of opposition decides to go along with the idea that they should appeal to the conservative crowd.

[thejester]

Definite highlight of this story was watching a Roman Catholic priest argue that it could lead to an increase 'in the molestation of young boys.' His strangled tone would suggest he understood the irony.

[Zor]

I am somewhat suprised here. Does Hinduism have the same sort of prohabitions against homosexuality as Abrahamidic religions?

Zor

[Nieztchean Uber-Amoeba]

I am somewhat suprised here. Does Hinduism have the same sort of prohabitions against homosexuality as Abrahamidic religions?

Zor

As I mentioned earlier, hell no. Certainly there's a little tribalistic homophobia in some regions, but as I noted, pretty much every prudish bit of legislature you can find in the Indian penal code is a holdover from Victorian British culture with little or no native base.