Religious disquiet on gay law:
An attempt to decriminalise
homosexuality has set up for the UPA government a sensitive test
reminiscent of the Shah Bano case.....Read
Delhi: In a judgment
that can open a Pandora's box, 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".
It further 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)
"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 UPA was initially in favour of repealing
Section 377 with Law Minister Veerappa Moily calling the law
But the Centre later backtracked with both
Moily and Health Minister Ghulam Nabi Azad calling for “consensus.”
Section 377 criminalises “carnal intercourse against the order of
nature,” a phrase interpreted to ban homosexuality.
The petitioners Naz Foundation (along with an
activist group ‘Voices Against 377’) argued that the law violated
the constitutional rights of homosexuals and that the section should
be “read down” to exclude “consensual sex between adults” from its
ambit, in effect decriminalising homosexuality in India.
The previous UPA government had opposed the
petition. Former MP B P Singhal, who “intervened” to oppose the
petition, said that if the HC decided to “read down” Section 377, he
would go to the Supreme Court in appeal.
(With Inputs from Express India)