Gay Sex Legalised In New Delhi

International News, By Christian Taylor, 2nd July, 2009

The New Delhi high court has overturned India’s Section 377, which means that gay sex between consenting adults is no longer an illegal act.

According to News.com.au the New Delhi High Court ruled today that the law which outlawed “carnal intervourse against the order of nature” was discriminatory and therefore a “violation of fundamental rights’’ under India’s constitution.

It’s good news for India’s gay community who in the past have been threatened by possible arrests, fines or prison sentences of up to ten years. In the past the law has been used extensively to stigmatise and criminalise gay, lesbian and transgender people. Activists have said that people were arrested under the code, and some were blackmailed for large sums of money by criminal gangs, who threatened to out them to their family and friends.

The High Court ruling was made on a petition brought by the Naz Foundation, a gay advocacy group.

“This is a long awaited and incredible judgment,’’ gay rights activist Gautam Bhan told press.

“The judges in their verdict spoke about inclusivity, quality and dignity. They spoke about a vision of India as an open, tolerant society and to hear all this from the Delhi High Court was amazing,’’ Mr Bhan said.

The High Court ruling found that the legislation went against the fundamental right of human citizens. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the Indian Penal Code would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The two judge bench went on to hold that:
“If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest 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 Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”