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Delhi HC okays consensual sex between gays

IANS
Jul 02, 2009 at 07:52pm IST

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New Delhi: Gay sex won legal sanction in India after the Delhi High Court on Thursday passed a landmark ruling that was hailed by gay rights activists but denounced by religious leaders as an assault on God.

In a judgment that followed eight years of judicial battle, the Delhi High Court read down Section 377 of the Indian Penal Code (IPC), quoting Jawaharlal Nehru to emphasise that the Constitution guaranteed gay rights equal to what other citizens enjoy.

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In a courtroom packed with around 100 people, Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, Section 377 would violate Article 21 of the Constitution, which states that every citizen has equal opportunity of life and is equal before law.

"Equality and inclusiveness are the tenets of the Constitution," they quoted India's first Prime Minister as saying. Calling any discrimination anti-thesis of the right to equality, the judges added, "Equality should not be read literally, but in true spirit."

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In a judgement of over 100 pages, the judges said that Section 377 should be amended and any sex between consenting adults should be legalised. They underlined, however, that this would not apply to those under 18 years.

Many of the gay rights activists from India and abroad present in the court broke into tears as the order was passed while others shouted in joy before realising that their action would amount to contempt of court.

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In no time, they trooped out of the court room screaming "We have won, we have won!" and "justice has prevailed". Simultaneously, they handed out pamphlets explaining what homosexuality is all about.

Outside, gay activists burst into celebrations and shouted slogans hailing the judiciary. Others held a variety of hand-written placards including one that said in bold letters: "377 Quit India".

Religious leaders protest

The reaction from Hindu, Muslim and Christian leaders was swift and bordered on anger and disbelief.

"The Arya Samaj can never accept this. This cannot be applied to Hindu society or our beliefs," a senior priest of Delhi Arya Samaj Mandir Ganesh Tripathi said.

All India Muslim Personal Law Board's Kamal Farooqi said, "This is a sad day for civilised society. It is not acceptable. They are playing with the future generations and civilised society."

Pro-vice chancellor of Darul Uloom Maulana Abdul Khaleeq Madrasi said over telephone, "Scrapping such law is not justified. Islam does not allow such relationships. This is an attempt to impose Western culture on Indian society."

Father Dominic Emmanuel added, "We are against legalising (gay sex)... This is because what they do is unnatural and against the design and will of God."

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Section 377, a relic of the British Raj, relates to "unnatural offences" and says that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished".

Chief Justice Shah and Justice Muralidhar said, "We declare Section 377 in so far as it criminalises consensual sexual acts of adults in private is violative of articles 14, 21 and 15 of the Constitution. The provision of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors."

They said this judgement will hold till Parliament chooses to amend the law.

The court also ruled that the Law Commission's report recommending gay sex to be legalised should be kept in mind by Parliament.

From now on, police will no longer be able to arrest adult gays having consensual sex.

Anjali Gopalan of the Naz Foundation said, "We had asked that Section 377 be read down. This, however, does not hold good for minors below 18. Also, the fact that adults have to be consenting is important. It is celebration time for us. We have waited for years for this day."

"I am very emotional at the moment. We have been struggling for this for 30 years. I didn't expect to see this in my lifetime. Now we can move forward to get laws for safety , security in marriage, jobs, etc for the gay community," said Gay rights activist Sunil Gupta.

In 2004, the Delhi High Court dismissed a similar petition, calling it an academic challenge to the constitutionality of a legislative provision which could not be entertained.

Last year, the Central Government had submitted that gay sex was immoral and reflective of a perverse mind and warned its de-criminalisation would lead to moral degradation in society.

"Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour (gay sex) is legalised," the Government contended.

It remains to be seen whether the Central Government will appeal against the latest order in the Supreme Court.

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