We, the Gay Community of Indian Society have triumphed over Section 377 of the Indian Penal Code which ‘ until now ‘prescribed punishment upto life imprisonment for indulging in “unnatural sexual acts”.

(The Government had earlier sidelined the stand of the then Health Minister Ambumani Ramadoss and opposed the PIL (against Article 377) by describing homosexuality as “the most indecent behaviour” in society.)

Today, Thursday 2nd July, 2009, a Bench of Delhi High Court omprising Chief Justice AP Shah and Justice S Murlidhar  legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.

A Gist of the Verdict by the esteemed Bench

“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 (by adults we mean everyone who is 18 years of age or above)

The provision of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal involving minors

This judgement will hold till Parliament chooses to amend the law.

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 Court observed that the inclusiveness that the Indian society traditionally displayed in every aspect of life manifested 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,”

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination

This was the spirit behind the resolution of which Jawaharlal Nehru spoke so passionately (referring to the Objective Resolution moved by Nehru on December 13, 1946 at the Constituent Assembly debate.)

Quoting Nehru, Justice Shah said “words are magic things often enough, even the magic of words sometimes cannot convey magic of human spirit and of a nation’s passion …(this 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 near future)”.

A provision of law branding one section of people as criminal based wholly on States’ moral disapproval of that class goes counter to equality guaranteed in the Constitution

The provision of section 377 runs counter to the Constitutional values and the notion of human dignity which is considered to be cornerstone of our constitution

Section 377 in its application to sexual act of consenting adults in privacy discriminates a section of people solely on the ground of their sexual orientation which is analogous to prohibited grounds of sex

Any discrimination on the grounds of sexual orientation was against Article 15 of the Constitution which prohibits any discrimination on grounds of sex, religion, caste or place of birth

A constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner so as to anticipate and take it out of changing conditions and purposes so that the Constitutional provision does not get atrophied or fossilised but remains flexible enough to meet the newly emerging problem”

This judgement, however, will not result in the reopening of criminal cases involving Section 377 of IPC that have already attained finality”

Thanks to all supporters, relatives and friends of the LGBT (Lesbian, Gay, Bisexual, Transgender) Community in India.

Jai Hind Dost!

For the Full Report: http://timesofindia.indiatimes.com/photo.cms?msid=4728348