Excerpts from Indian court ruling on homosexuality
Jul 9, 2009 - 5:53:06 PM
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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.
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By IANS,
[RxPG] The Delhi High Court 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... - 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 - 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 -, 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 - number at around 25 lacs -. 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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