Expanding the scope of an Indian citizen’s rights by equating “sexual orientation” with the Constitutionally protected identities of gender, caste, religion and race, the Delhi High Court today decriminalised gay sex between consenting adults. And made it clear that the Constitution does not allow law to be held captive by popular “misconceptions” and prejudice.

The historic verdict, if upheld by the Supreme Court — where it is set to be challenged — will bring to an end the discrimination against homosexuals so far sanctified under a 149-year-old law.

Invoking Jawaharlal Nehru and the Constitution’s spirit of inclusiveness, Chief Justice Ajit Prakash Shah and Justice S. Muralidhar held that Section 377 of the Indian Penal Code, “insofar (as) it criminalises consensual sexual acts of adults in private,” violated the principles of equality and non-discrimination contained in Articles 14, 15 and 21 of the Indian Constitution.

Article 14 guarantees all people “equality before the law,” Article 15 prohibits discrimination “on grounds of religion, race, caste, sex or place of birth,” and Article 21 guarantees “protection of life and personal liberty.”

There was hushed silence in the packed courtroom as Chief Justice Shah began reading out the concluding part of the judgment eight years after the case was first filed. The petitioners Naz Foundation, along with an activist group ‘Voices Against 377,’ had 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.

When Justice Shah came to the verdict’s key sentence — that parts of Section 377 were unconstitutional — there were loud cheers. As the judges left the court, many hugged each other while some sobbed gently. Lesley Esteves, a gay activist present in court, began crying when she realised the import of what the judge was saying. She termed the judgment “historic” and told The Indian Express that “emotionally, she had been waiting for this all her life.”

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