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Legalising gay existence: the Delhi High Court verdict

By ruling that Section 377 of the Indian Penal Code violates provisions of the Constitution, the Delhi High Court has taken the first step to legalise the existence of the gay community in India and specifically recognise that gay people have equal rights in accordance with the Constitution of India, says Vivek Raj Anand

July 2, 2009 has become a golden moment in the history of the gay movement in India. An eight-year-long court battle that sought justice for the gay community and its basic human right to exist came to its logical conclusion with the Delhi High Court’s decision, in the public interest litigation filed by Naz India Foundation, Delhi, to “read down” – or interpret – Section 377 of the Indian Penal Code so that it no longer applies to consenting adults.  

Section 377 of the Indian Penal Code was imposed by the British in 1860 on a culture that was historically known to be tolerant of different sexual practices. The law stayed on the books here long after it was changed in the UK. Section 377 states that “whoever voluntarily has carnal intercourse against the order of nature with man, woman or animal shall be punished with imprisonment for life or for a term upto 10 years”. It criminalised homosexual behaviour – it turned all gay people into criminals – and was repeatedly used to harass and blackmail some people because they loved someone of their own sex. It labelled some people deviants, and they paid the price for being different.  

The landmark judgment delivered by the Delhi High Court stated: “We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.” 

While the judgment is not binding outside Delhi, it sets a precedent that should lead to the decriminalisation of gay sex country-wide. 

The public health argument against applying Section 377 to gays is that criminalising same sex activity sabotages prevention efforts among a marginalised group. Indeed, peer educators in HIV programmes for men having sex with men (MSM) and transgender communities have repeatedly been harassed by the police.  

The judgment went one step further, accepting the petitioners’ contention that criminalising same sex activity is discrimination on the basis of sexual orientation and therefore a violation of fundamental rights.  

This is the first step that legalises the existence of the gay community in India and specifically recognises that gay people have equal rights in accordance with the constitution of India. It opens the doors for the community to take legal action when they face discrimination. 

The decision will now bring to the fore issues that have affected the community of gay men, women and transgenders, but have so far not been addressed in the system. There are countless instances of gay men, women and transgenders losing their jobs, their homes, and more, because of their sexual orientation. They are deprived of property rights and access to health services and education; they face violence and are forced into heterosexual marriages; they are denied the right to same sex marriages; they are denied adoption rights – the list goes on and on.  

The decision of the high court does not accord the community any additional privileges. It should not be seen as the end of the journey but as the first step, a beginning for the community. The fear of being labelled a criminal and leading a criminalised life is now gone. The community can breathe the fresh air of freedom and start constructive work now. 

It is time to advocate for the issues that affect the lives of the community. It is time to start a dialogue with mainstream society and policy makers. It is time to hold our heads high and say that we are equals and will not settle for anything less. Nor will we demand anything more than to be equals in a democratic society, and be part of the process and contribute constructively towards the development of this great nation called India.  

(Vivek Raj Anand is chief executive officer, Humsafar Trust, India’s oldest gay community-based organisation) 

Conclusion of the Delhi High Court judgment in the matter of Naz Foundation v. National Capital of Delhi and Others  

The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. He said, “Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.” [Constituent Assembly Debates: Lok Sabha Secretariat, New Delhi: 1999, Vol. I, pages 57-65]. 

130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest 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. 

131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.  

132. We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By ‘adult’ we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which we believe removes a great deal of confusion. Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.  

We allow the writ petition in the above terms. 

Chief Justice A P Shah, Justice S Muralidhar July 2, 2009