It clarified that "its judgement will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality."
The High Court, while allowing the PILs filed by an NGO, Naz Foundation and others fighting for gay rights, ruled out the government's contention that decriminalisation of homosexual acts would lead to spread of HIV virus.
"There is no scientific study or research work by any recognised scientific or medical body or for that matter any other material to show that any casual connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS," the Bench said.
It rejected the contention of the Government that gay sex is "immoral" and homosexual comprises only 0.3 per cent of the population and the rights of more than 99 per cent population cannot be compromised by legalising such behaviour.
"Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view," the Bench said.
The Bench observed that the inclusiveness that the Indian society traditionally displayed in every aspect of life manifested in recognising a role in society for everyone.
"Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracised," the Bench said.
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination, it said.
... contd.
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