India legalizes homo-sexuality

Activists celebrating in Mumbai

Activists celebrating in Mumbai

The Delhi High Court on July 2nd, 2009 legalised gay sex among consenting adults holding that the law making it a criminal offense violates fundamental rights. “Consensual sex amongst adults is legal which includes even gay sex and sex among the same sexes,” said a two-judge bench of the court.

Delhi’s High Court ruled that the law outlawing homosexual acts was discriminatory and a “violation of fundamental rights”.  The court said that a statute in Section 377 of the Indian Penal Code, which defines homosexual acts as “carnal intercourse against the order of nature” and made them illegal, was an “antithesis of the right to equality”.

Excerpt from judgment:

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. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

…..

We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

Petitions to change the 1861 law have so far been firmly rejected by the government but there has been some softening up on the stand in recent years, with officials saying the possibility of revoking the ban was being discussed. Under the current law, homosexual sex is punishable by up to 10 years in jail.

Thursday’s court verdict came after nine years of legal proceedings initiated by India’s gay groups. Gay activists and the NGO which fought eight-year-long legal battle for their rights on Thursday hailed the Delhi High Court verdict legalising homosexuality as “progressive”.

“Now it seems we are in 21st century as the rights of homosexuals have been recognised by the high court. “This is very progressive judgement which recognises the right to equality,” Anjali Gopalan, founder of Naz foundation, the NGO, which filed the petition in Court, said. The gay rights activists never sought total scrapping of the penal provisions and simply fought against exclusion of a section of society, she said.

Supreme Court lawyer and gay activist Aditya Bandhipadhyay said, “It opens for us opportunity to claim all civil rights denied to Lesbian Gays Bisexual and Transgender people for 160 years. It also shows very positively that our judiciary values and human rights are not swayed by miopic public reaction and the tyranny of the majority.”

Arif Jafar, gay rights activist and head of Naz foundation, Lucknow said, “I think it is a good news after a long time. The efforts of so many people have finally been rewarded. Cases of harassment and blackmailing by police will come down.”

compiled from various news sources

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