Delhi High Court legalises gay sex

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

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."

"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.

The next five years would be an era of judicial and legal reforms

New Law Minister Veerappa Moily, meanwhile, gave notice: "The next five years would be an era of judicial and legal reforms." He spoke of measures to radically trim the huge pendency of cases - new civil and criminal courts to fast-track a notoriously sluggish process, to deliver "affordable and accessible justice to the last man in the queue". He promised a systematic attempt to fight the creeping evil of corruption in higher judiciary - making it mandatory for judges to disclose assets, taking a more serious look at an impeachment law that has never ever been used.

Also on the anvil were laws to strengthen witness protection, a less severe attitude to allowing in foreign law firms. In the midst of gay pride rallies in three big cities, he even made a bold promise to reevaluate a law that still criminalizes homosexuality in India.

On Thursday, in a historic judgment, the Delhi High Court went ahead and struck down section 377 of the Indian Penal Code, decriminalizing homosexuality. This judgment is particularly surprising, given the revisionist thinking that followed the groundbreaking nature of some of such controversial pronouncements.

After Islamic and Christian groups expressed loud reservations, the law minister had to famously renege on his own casually offered pledge to amend Article 377, the law authored during Lord Macaulay's time that makes "unnatural sex" a punishable offence. It was hardly, if ever, used punitively on consensual homosexual activity, but gay rights activists have long wanted the "criminal" tag to go.

Centre fails to take a stand in HC on homosexuality law

The Centre in its reply had taken a contradictory stand with Ministry of Home Affairs favouring the retention of the penal provision for homosexual acts while the Health Ministry was against the enforcement of Section 377 in cases involving consenting adults. 

"Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private," the Home Ministry had said in its affidavit. 

"Deletion of the Section can open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for homosexual acts," it had said. 

The Ministry of Health, on the other hand, has not favoured the enforcement of the penal provisions against consenting homosexual adults. 

"Enforcement of Section 377 can adversely contribute to pushing the persons suffering from HIV underground which would make such risky sexual practises go unnoticed," said an affidavit filed by National Aids Control Organisation (NACO), which comes under the Ministry of Health.