Tags: Lesbians , LGBT , IPC 377 , Homosexuality , Gays , Bisexuals

New Delhi: Don't surprise if you find a man loves man or a girl falls in love with another girl in your nearby. Yes, it is legalised now.

In a historical judgement, the Delhi High court today leagalised homosexuality by repealing IPC 377.

The Section 377 of the IPC as far as it criminalises gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalises homosexuality, will continue for non-consensual and non-vaginal sex.

Section 377, a law from the British Raj era, says homosexuality and "unnatural sex" is a criminal act. If anyone found practising such unnatural act could face 10-year jail term, fine or both.

Meanwhile, the decision has rejoiced the community of lesbians, gays, bisexuals and transgenders (LGBT) as their much awaited demand fulfilled today.

However, several religious leaders have opposed the decision citing it unnatural relationship.

Psychological view on homosexuality:

If psychologists are to be believed homosexuality could not be considered as criminal act. Because attraction for same sex is by birth. In some cases, a girl or boy attracts toward same sex due to childhood sexual harassment.

Psychologists believe that as the attraction is by birth so it could not be treated as criminal act.

Homosexuality against will of God

For once India's religious heads stood united, with denominational leaders speaking in one voice against the ruling of the Delhi High Court legalising gay sex as an attempt "to impose western culture on Indian society", and said homosexuality was against "the will of god".

"This is a sad day for civilised society. It (the ruling) is not acceptable. They are playing with the future generations and civilised society," said All India Muslim Personal Law Board's Kamal Farooqi.


"Scrapping such a law is not justified. This is an attempt to impose western culture on Indian society," Maulana Abdul Khaleeq Madrasi, pro-vice chancellor of Darul Uloom, one of India's biggest Islamic seminaries, told reporters.


In a historic judgment, the Delhi High Court de-criminalised homosexuality by striking down section 377 of the Indian Penal Code (IPC). It said that any sex between consenting adults should be legalised.


A bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar said that if not amended, section 377 would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.


Section 377, a relic of the British Raj, relates to "unnatural offences" and says that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished".


Yoga guru Ramdev also slammed the ruling.


"This (decision) will encourage criminality and sick mentality in the society. This kind of thing is shameful and insulting," Ramdev said.


"We are blindly following the West in everything. This is breaking the family system in India. These (gays) are sick people and they should be sent to hospitals for treatment. That's the only cure for them. They will recover after the treatment and then they could marry or stay bachelor just like me," Ramdev told IANS over phone.


"If the government brings this law then I will myself come out on streets in Delhi to protest. It is against our Vedic culture," he said.


Religious heads were both shocked and angered by the judgement.


Gyani Gurbachan Singh, head priest of the Akal Takth - the highest temporal seat of the Sikh community - said: "We strongly oppose this high court decision. It is against the laws of the nature. We appeal to the Indian government to rethink the issue. We also appeal to the Sikh community to boycott this verdict as it is against the teachings of the Guru Granth Sahib."


Ganesh Tripathi, a senior priest of Delhi Arya Samaj Mandir, said: "The Arya Samaj can never accept this. This cannot be applied to Hindu society or our beliefs."


"Homosexual acts go against nature. This (judgement) is wrong and just because a small section of society wanted this, the court has overlooked the majority's views," he added.


Father Dominic Emmanuel, the founder of Sarvadharam Sadbhav (Communal Harmony and Peace) said: "We have no objection or opposition to de-criminalisation of homosexuality because we never considered them criminals. However, we are also clear that we are against legalising it... because what they do is unnatural and against the design and will of god."


An outraged Shahi Imam Ahmad Bukhari of the Jama Masjid told: "This is such a dirty issue. I have decided that I will not even speak about it because if I do, it will be an insult to me and our belief. The government cannot dare to make this legal - when they do, we will react and talk then."

Court verdict will give us life of dignity, say Gays

New Delhi: For the members of the gay community, the Delhi High Court verdict Thursday that decriminalises homosexuality means one simple thing - now on living a life of dignity.

"The verdict has been a source of inspiration," Ravi Sharma, a gay rights activist, told reporters here.


"The fact that the court pronounced that morality cannot be imposed and that it is our fundamental right to live the way we want to, is something we have been pining to hear for ages now," Sharma said.


In a judgment that followed eight years of judicial battle, the Delhi High Court read down section 377 of the Indian Penal Code (IPC), emphasising that the constitution guaranteed homosexuals rights equal to what other citizens enjoy.


In a courtroom packed with around 100 people, half of them activists, Chief Justice Ajit Prakash Shah and Justice S. Muralidhar said 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.


Section 377, a relic of the British Raj, relates to "unnatural offences" and says that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished".


The Press Club of India where the petitioners of the Naz Foundation along with lawyers and members of the lesbian, gay, bisexual and transgender (LGBT) community gathered for a news conference in the afternoon was teeming with people - so much so that reporters had to stand on the staircase and listen to the panelists.


Tripti Tandon, a lawyer speaking on behalf of the Naz Foundation, said: "It was heartening to hear Justice A.P. Shah and Justice S. Muralidhar quote Nehru in saying that equality and inclusiveness are the tenets of our constitution while pronouncing the verdict."


"Having said that, I hope the United Progressive Alliance (UPA) government always remembers what the first prime minister of the country had said and also always practices the virtues of inclusiveness, which it has championed," she said.


As the experts sat talking, answering queries and discussing the verdict, a number of members of the transgender community - dressed in all their fineries and make-up - sat in front, smiling and holding one another's hands.


"I am so happy. We can finally live with dignity and pride," said Roshni, one of the transgender community members as she hugged her friends.


Anjali Gopalan of the Naz Foundation said: "This is a progressive beginning. But we have a long way to go. Judicial changes will give way to societal changes of accepting people for being themselves. It will take time but will happen eventually."


According to National AIDS Control Organisation (NACO) there are 2.5 million men having sex with men (MSM) in India.

Excerpts from historic court ruling on homosexuality

The Delhi High Court Thursday gave a landmark judgement that de-criminalises homosexuality. Here are key excerpts from the 105-page ruling:

- The notion of equality in the Indian Constitution flows from the ‘Objective Resolution' moved by Pandit Jawaharlal Nehru in 1946. He said: "Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion… (The 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 the near future."


- 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.


- 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 (Lesbians, Gays, Bisexual and Transgenders) 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.


- We declare that Section 377 IPC (Indian Penal Code), insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report.


- The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery.


- The Government of India estimates the MSM (man having sex with man) number at around 25 lacs (2.5 million). The number of lesbians and transgenders is said to be several lacs as well. This vast majority is denied "moral full citizenship". Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private.


- Since 1967 the process of change has informed legal attitude towards sexual orientation. This process has culminated in the de-criminalisation of sodomy in private between consenting adults, in several jurisdictions. The superior courts in some of these jurisdictions have struck down anti-sodomy laws, where such laws remain on the statute book. In 1967 in England and Wales and in 1980 in Scotland sodomy between consenting adult males in private was de-criminalised. However, in Northern Ireland the criminal law relating to sodomy remained unchanged.


- Homosexuality is no longer treated as a disease or disorder and now near unanimous medical and psychiatric expert opinion treats it as just another expression of human sexuality.


- Sexual transmission is only one of the several factors for the spread of HIV and the disease spreads through both homosexual as well as heterosexual conduct. There is no scientific study or research work by any recognised scientific or medical body, or for that matter any other material, to show any causal connection existing between decriminalisation of homosexuality and the spread of HIV/AIDS.


- Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of morality that can pass the test of compelling state interest, it must be constitutional morality and not public morality.


- The Constitution of India recognises, protects and celebrates diversity. To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the constitutional morality.


- Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual nonconformity, persecuted, marginalised and turned in on itself.

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