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Delhi High Court legalises gay sex

Nirnimesh Kumar

Section 377 provision of IPC struck down

— Photo: AFP

Activists celebrate the High Court verdict decriminalising gay sex, in New Delhi on Thursday.

NEW DELHI: In a landmark judgment, the Delhi High Court on Thursday struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution.

Gays present in the court room hailed the judgment and greeted one another with hugs.

A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its 105-page order said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (Right to Protection of Life and Personal Liberty), 14 (Right to Equality before Law) and 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of birth) of the Constitution.

“We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15,” the judgment said.

However, the court clarified that “the provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

The judges also said that by adult they meant “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,” the judgment said.

The Bench further said that “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.”

The judgment also made it clear that it would not result in re-opening of criminal cases involving Section 377 that had already attained finality.

The verdict came on a PIL plea by Delhi-based non-government organisation Naz Foundation that the Section 377 provision criminalising sexual acts between consenting adults in private violated Articles 14, 15, 19 and 21 of the Constitution.

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