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Delhi High Court legalises gay sex
R Sedhuraman
Legal Correspondent

New Delhi, July 2
The Delhi High Court today legalised gay sex among consenting adults, ruling that Section 377 of the IPC, which treats such acts as a criminal offence, runs counter to people’s fundamental rights to personal liberty, equality and non-discrimination guaranteed under the Constitution.

“We declare that Section 377 of the IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (personal liberty), 14 (equality) and 15 (non-discrimination) of the Constitution,” a Bench comprising Chief Justice Ajit Prakash Shah and Justice S Muralidhar said.

The court, however, clarified that the provisions of Section 377 of the IPC “will continue to govern non-consensual” gay sex involving minors. It also clarified that everyone who was 18 years of age or above would be treated as an adult for the purpose.

The ruling would be valid till Parliament amended the law on the recommendation of the Law Commission of India that felt that there was an “urgent need” to follow global trends on the issue of sexual offences and delete the controversial section.

The judges also made it clear that the verdict “will not result in the re-opening of criminal cases involving Section 377 that have already attained finality”. The move was also necessary to effectively combat AIDS menace, the court said.

The 105-page verdict sparked instant jubilation among gay activists assembled outside the court as they hugged and congratulated one another.

Interestingly, the Union Home Ministry had opposed the petition, while the Health Ministry wanted legal approval to gay sex.

The high court pointed out that the Centre’s admission that the section was generally used in cases of sexual abuse or child abuse “shows that criminalisation of adult same-sex conduct does not serve any public interest”.

The court did not agree with the government’s contention that legalising gay sex would open the floodgates for such tendencies in society. There was no study to support this view, the Bench averred. It also refused to accept the morality angle. “If there is any type of morality that can pass the test of compelling state interest, it must be Constitutional morality and not public morality,” the court ruled.

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Ruling could set precedent: UN

Geneva: A landmark ruling in India to legalise gay sex could set an example for about 80 countries which still outlaw homosexual sex, a UN agency said on Thursday. It would also encourage more HIV victims in India to come forward to seek treatment and information, added the United Nations joint programme on HIV and AIDS. "We think this will set an important precedence throughout the world," said Susan Timberlake, who heads UNAIDS' human rights and law team.

 

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Delhi HC verdict supporting gay rights hailed
Shubhadeep Choudhury
Tribune News Service

Bangalore, July 2
Gays in Bangalore today celebrated the Delhi High Court order legalising sex between consenting adults of the same sex by singing, dancing and rejoycing. “Sangama”, a prominent city organisation representing sexual minority groups, organised a function at the Charles Ransom Hall of the United Theological College here to celebrate the court verdict.

The function was attended by transvestites, gays, lesbians and bisexuals and their “straight” sympathisers. BT Venkatesh, a lawyer representing the Sangama, said the judgment by the Delhi High Court was a historic one as it would decriminalise sexual relations between persons of the same sex. According to him, the court judgment would be applicable across the country since no other judgment of a contradictory nature had been given by any other court.

He said Section 377 of the IPC should be abolished and a new law brought in its place. “Section 377 is a colonial legacy. It exists in all former British colonies such as Pakistan, Bangladesh, Malaysia, etc”, he said. Shruba Chacko, a Sangama activist, said the court had finally given recognition to sex between consenting adults of the same sex.

“The court has acknowledged the diversity that exists in the society. Hopefully, this will pave the way for the discriminatory treatment meted out to people with different kinds of sexual orientations”, she said. Marcus, a 23-year-old American, who is working as an intern in the Alternative Law Forum in Bangalore, said, “it was a great judgment”. He cited a US Supreme Court order in 2004 striking down the Sodomy Laws of Texas, which he said, had uplifted the morale of the sexual minorities in the USA in a big way.

The American, who described himself as a “bisexual”, said the Delhi court order would have a “symbolic value” and would encourage sexual minorities to be open about their sexual preferences.

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