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India – Delhi High Court rules that gay sex is legal

The world over, different countries have different concepts revolving around homosexuality. There are states in the United States that have made marriage between homosexuals as having the same legal sanctity as that between a man and a woman, there are other states where this is a matter of huge debate and controversy (with the Catholic and Protestant churches being against it), countries in parts of Europe are liberal while those where the Church has a stronger influence are less likely, and there are the Islamic countries where the concept is abhorrent – forget marriage between homosexuals, even the concept of a relationship was unacceptable (for example, in Iraq, insurgents would target homosexuals for murder).
What about the thought of homosexuality in a country such as India, which has a long history, and where there is a lot of debate even among historians about whether homosexuality was prevalent in the past. India, till today, had a law called Section 377, that made homosexuality a crime (even among consenting adults). This law meant that even among groups with a higher risk pattern for AIDS (such as gays), it was difficult to really follow anti-AIDS programs since a number of people would hide their homosexuality, or not be open about it.


For the past several years, there has been a debate stoked by AIDS campaigners and gay rights groups about revoking this section of the penal code (it was introduced by the British in British ruled India in 1861, and is no longer prevalent in the Britain of today). However, attempts by the Government to do a debate on removing this section of the penal code runs aground due to opposition by religious groups (and there are enough people in each religious group to be outraged by the thought of homosexuality), so it would have seemed difficult by the Government to move fast on such a law. And then came this stunning judgment by the Delhi High Court (and interestingly, it uses the same argument as used by several US state courts, using the theory that such laws are violative of many of the equality and fundamental rights of citizens) (link to target):

In a breakthrough judgment, the Delhi High Court on Thursday legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights. “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,” a Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.
It 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.

It is pretty much sure that there will be appeals to the Supreme Court by many sections of society, one only hopes that the Government will not try to get this judgment over-turned. At the same time, this is a judgment by the Delhi High Court, and is applicable in the capital city (even though it is a precedent that can be used by organizations all over the country); ultimately it is either the judgment of the Supreme Court or a law passed by Parliament that can ensure coverage across the entire country.

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