New Delhi: In a historic judgement, the Delhi High Court on Thursday legalised consensual sex among gays.
The court struck down Section 377 of the Indian Penal Code (IPC).
A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, Section 377 of the IPC would violate Article 21 of the Indian Constitution, which states that every citizen has equal opportunity of life and is equal before law.
“We declare Section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution,” the Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.
However, Section 377 of the IPC which criminalises homosexuality, will continue for non-consensual, non-vaginal sex.
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Section 377, a law from the British Raj era, says “unnatural sex” is a criminal act.
The court further said that this judgement will hold till Parliament chooses to amend the law.
“In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,” the Bench said in its 105-page judgement.
In 2004, the High Court had dismissed the same petition, saying that it was an academic challenge to the constitutionality of a legislative provision which could not be entertained.
–Agencies