In a path-breaking judgment prohibiting discrimination on the grounds of sexual orientation, Delhi High Court recently legalized homosexuality among consenting adults, holding that the law making it a criminal offence violates fundamental rights. However, the court clarified that Section 377 of the Indian Penal Code, 1860, (IPC) which criminalizes homosexuality, will continue for non-consensual sex and non-vaginal sex involving minors. The high court, while allowing the public interest litigations filed by the Naaz Foundation and other non-profit organizations working for HIV/AIDS prevention and fighting for gay rights, clarified that “its judgment will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality”.
A division bench of Justice AP Shah and Justice S Muralidhar in its judgment said: “We declare that Section 377 of the IPC, insofar as it criminalizes 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 of India.” The court said that a statute in Section 377 of the IPC, which defines homosexual acts as “carnal intercourse against the order of nature” and made them illegal, was an “antithesis of the right to equality”. “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.
The court said its judgment would hold till parliament amended the law in tune with the recommendations of the Law Commission in its 172nd report on decriminalizing sex between consenting adults in private.
The order assumes significance in view of the conflicting stands taken by the Home Ministry and the Health Ministry. While the Home Ministry wanted the petition to be dismissed, the Health Ministry said the statute 377 was obstructing AIDS/HIV prevention efforts. The ruling is noteworthy as it overturns a 149-year-old colonial law which describes a same-sex relationship as an “unnatural offence”. Although the judgment is under challenge before the Supreme Court, the operation of the judgment has not yet been stayed.
The update of court judgments is compiled by Bhasin & Co, Advocates, a corporate law firm based in New Delhi. The authors can be contacted at [email protected], [email protected] or [email protected] Readers should not act on the basis of this information without seeking professional legal advice.