New Delhi - A court in New Delhi on Thursday decriminalized
gay sex between consenting adults by striking down a nearly
150-year-old law that made homosexuality a crime.
In its landmark judgement, the Delhi High Court said the law
violated the Indian constitution, which states that every citizen has
equal opportunity of life and is equal under the law.
Section 377 of the Indian Penal Code, which dates back to
pre-independence British India and was introduced in 1861, said
homosexuality and 'unnatural sex' are criminal acts punishable by
10-year prison terms and fines.
'Inclusiveness' is the underlying theme of the Indian
constitution, a bench consisting of Chief Justice Ajit Prakash Shah
and Justice S Murlidhar said in its verdict on the much-debated
petition by gay rights activists.
'The inclusiveness that Indian society traditionally displayed,
literally in every aspect, is manifest in recognizing a role in
society for everyone,' the court said. 'Those perceived by the
majority as 'deviants' or 'different' are not on that score excluded
or ostracized.'
'Where society can display inclusiveness and understanding, such
persons can be assured of a life of dignity and non-discrimination,'
it said.
The petitioners - who included the Naz Foundation, a gay advocacy
group - pleaded that the criminal provision against homosexual
behaviour should be scrapped because it violated their fundamental
rights.
The verdict is the first to be delivered by an Indian court on the
19th-century law and was described as a 'historic victory' for
India's gay community, estimated to number 2.5 million.
The court ruling came after a long battle by gay rights activists.
Thousands participated in parades in Delhi, Chennai and Bangalore
recently, demanding the scrapping of Section 377, which they said
encouraged discrimination and a stigma against gay people.
Many gay activists and supporters celebrated Thursday by
distributing sweets and hugging each other outside the court.
'For most of the time, we never dared to dream we would win,'
activist Leslie Ashley told reporters. 'We are feeling very
emotional today because our country has moved closer to the meaning
of being a liberal democracy, respecting minorities, respecting
differences and respecting our constitution.'
The Delhi court ruling applies to the entire country but can be
appealed at the Supreme Court. The Delhi court clarified that its
judgement would hold until Parliament chose to amend the law.
Law Minister Veerappa Moily said he would examine the details of
the judgement.
But religious groups from the Hindu, Muslim and Christian
communities in the conservative South Asian country that regard
same-sex relationships as blasphemous strongly disapproved of the
ruling.
Murli Manohar Joshi, leader of the main opposition Hindu
nationalist Bharatiya Janata Party opposed the scrapping of Section
377 saying it would lead to 'anarchy.'
'The judgement is disappointing,' Maulana Khalid Rashid of the All
India Muslim Personal Law Board told the NDTV network. 'Homosexuality
is not only against Islamic law but is also against all other
religions.'
'Homosexuality also leads to AIDS and other diseases, so if it so
harmful and all religions in India are against the practice, there is
no need to legalize homosexuality,' Rashid said.
'This is not a matter limited to legality because it certainly has
moral and ethical overtones,' said Reverend Babu Joseph, spokesman of
the Catholic Bishops Conference of India.
'Although there is a need to amend the law to not consider them
[gay men and lesbians] as criminals, we cannot afford to endorse
homosexuality as normal and socially acceptable,' he said.
The United Nations disagreed, however. Its task force on HIV/AIDS
welcomed the court's decision, saying it would improve health
conditions and help fight the virus.
'The Delhi High Court has restored the dignity and human rights of
millions of men who have sex with men and transgendered people in
India,' UNAIDS Executive Director Michel Sidibe said in a statement.
The now annulled law drove 'people underground, making it much
harder to reach them with HIV prevention, treatment and care
services,' Sidibe noted.
More than 80 countries still have legislation that prohibits
same-sex behaviour, the United Nations reported. Sidibe said the
Indian decision 'sends a positive message to countries where such
laws still exist.'
USA
Your Talkback on this Story