Delhi HC invokes Nehru, legalises gay sex

In a victory for gay rights activists, the Delhi High Court legalised homosexual acts among consenting adults holding that the 149-year-old law making it a criminal offence is violative of fundamental rights and not punishable.

"We declare section 377 of Indian Penal Code in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14, and 15 of the Constitution," a Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.

The verdict, which was described as "progressive" by the gay rights activists who fought an eight-year-long legal battle, said, "section 377 denies a person's dignity and criminalises his or her core identity solely on account of his or her sexualities and thus violates Article 21."

"As it stands, section 377 denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution," the Bench said in its 105-page judgement allowing the plea of gay right activists seeking to decriminalise homosexual acts among consenting adults which otherwise attracts punishment up to life imprisonment.

However, the Bench said Section 377 of the Indian Penal Code which criminalises homosexuality, will continue for non-consensual and non-vaginal sex involving minors.

The verdict evoked sharp reactions among religious leaders with Jama Masjid Imam Ahmed Bukhari and Father Dominic Immanuel, spokesperson of Catholic Church, strongly disapproving the decision, saying homosexual acts were unnatural and cannot be legalised.

The verdict comes at a time when Government is considering the issue of scrapping section 377. The court said its judgement would hold till Parliament chooses to amend the law.

It clarified that "by adults, we mean everyone who is 18 years of age and above".

Observing that "there is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or disorder and is just another expression of human sexuality," the Bench was critical of the provision of section 377.

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