New Delhi - A court in New Delhi on Thursday decriminalized gay sex between consenting adults by striking down a nearly 150-year-old law that made homosexuality a crime. In its landmark judgement, the Delhi High Court said the law violated the Indian constitution, which states that every citizen has equal opportunity of life and is equal under the law.
Section 377 of the Indian Penal Code, which dates back to pre-independence British India and was introduced in 1861, said homosexuality and "unnatural sex" are criminal acts punishable by 10-year prison terms and fines.
"Inclusiveness" is the underlying theme of the Indian constitution, a bench consisting of Chief Justice Ajit Prakash Shah and Justice S Murlidhar said in its verdict on the much-debated petition by gay rights activists.
"The inclusiveness that Indian society traditionally displayed, literally in every aspect, is manifest in recognizing a role in society for everyone," the court said. "Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracized."
"Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination," it said.
The petitioners - who included the Naz Foundation, a gay advocacy group - pleaded that the criminal provision against homosexual behaviour should be scrapped because it violated their fundamental rights.
The verdict is the first to be delivered by an Indian court on the 19th-century law and was described as a "historic victory" for India's gay community, estimated to number 2.5 million.
The court ruling came after a long battle by gay rights activists. Thousands participated in parades in Delhi, Chennai and Bangalore recently, demanding the scrapping of Section 377, which they said encouraged discrimination and a stigma against gay people.
Many gay activists and supporters celebrated Thursday by distributing sweets and hugging each other outside the court.
"For most of the time, we never dared to dream we would win," activist Leslie Ashley told reporters. "We are feeling very emotional today because our country has moved closer to the meaning of being a liberal democracy, respecting minorities, respecting differences and respecting our constitution."
The Delhi court ruling applies to the entire country but can be appealed at the Supreme Court. The Delhi court clarified that its judgement would hold until Parliament chose to amend the law.
Law Minister Veerappa Moily said he would examine the details of the judgement.
But religious groups from the Hindu, Muslim and Christian communities in the conservative South Asian country that regard same-sex relationships as blasphemous strongly disapproved of the ruling.
Murli Manohar Joshi, leader of the main opposition Hindu nationalist Bharatiya Janata Party opposed the scrapping of Section 377 saying it would lead to "anarchy."
"The judgement is disappointing," Maulana Khalid Rashid of the All India Muslim Personal Law Board told the NDTV network. "Homosexuality is not only against Islamic law but is also against all other religions."
"Homosexuality also leads to AIDS and other diseases, so if it so harmful and all religions in India are against the practice, there is no need to legalize homosexuality," Rashid said.
"This is not a matter limited to legality because it certainly has moral and ethical overtones," said Reverend Babu Joseph, spokesman of the Catholic Bishops Conference of India.
"Although there is a need to amend the law to not consider them [gay men and lesbians] as criminals, we cannot afford to endorse homosexuality as normal and socially acceptable," he said.
The United Nations disagreed, however. Its task force on HIV/AIDS welcomed the court's decision, saying it would improve health conditions and help fight the virus.
"The Delhi High Court has restored the dignity and human rights of millions of men who have sex with men and transgendered people in India," UNAIDS Executive Director Michel Sidibe said in a statement.
The now annulled law drove "people underground, making it much harder to reach them with HIV prevention, treatment and care services," Sidibe noted.
More than 80 countries still have legislation that prohibits same-sex behaviour, the United Nations reported. Sidibe said the Indian decision "sends a positive message to countries where such laws still exist."
