Delhi High Court Overturns Section 377: I Am Not A Criminal Anymore

Yesterday, the Delhi High Court decriminalized homosexuality by reading down Section 377 of the Indian Penal Code in a historic judgement. The court said that criminalizing of gay sex between consenting adults is a violation of fundamental human rights. In doing this, it has set a strong precedent for other State High Courts and Lower Courts that might hear cases involving Section 377 in the future.

Although the ruling is technically valid only in the state of Delhi, legal view is that it is a precedent that no other jurisdiction would challenge. A Supreme Court ruling would have governed all over India. As yet, the Central government has said nothing regarding whether there will be an appeal to the Supreme Court. [1] [2]

Provisions of Section 377 will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.

The entire judgement can be read here.

A few highlights (courtesy @gay_india):

Delhi High Court holds that sexual orientation is analogous to sex and that discrimation on basis of sexual orientation is not permitted. This judgement effectively implies that discrimintion on the basis of sexual orientation is held illegal as well.

"Those perceived as 'deviant' or 'different' are not excluded or ostracised from inclusiveness of the constitution."

"Homosexuals are subject to extensive prejudice because what they are perceived to be, not because of what they do."

"Where society can display inclusiveness and understanding, marginalised can be assured of a life of dignity and non-discrimination."

This is so amazing. I had never ever thought that my country would get here, to this point, so soon. I used to wonder whether I would ever see homosexuality become legal in my life, in this country. Looks like I underestimated the integrity of the Judiciary and of my countrypeople. The past few days have been great for me, what with my very happy coming out to my sister and now the legalization of homosexuality.

-----

A little sugar: Delhi - Love Under The Rainbow : Desicritics.org

A little non-sugar: Same sex, same rights now - Samay Live
To quote my friend @The_Whipster [a.k.a RWS], "This is the worst article ever written in the history of the world!"

-----

Happy though I am, I would be lying if I said that I am not worried about a few things:

I'm afraid, now that the wingnuts are white-hot with fury, if the case is brought to the Supreme Court, it might override Delhi HC and rule against us. Even the Law minister V. Moily is opposed to the Delhi HC ruling.

Also, the police has been known for harassing and exploiting gay men and transwomen under threat of Section 377. I'm not sure whether this ruling will have any effect on the predatory ways of the 'protectors of citizens' because not many people will sue in fear of being outed. Mind, the society still largely holds homosexuality as against 'Indian Culture'.

I don't mean to sound pessimistic but I do fear there could be a huge backlash against the community. Queer bashing could most likely increase with rapes and murders of LGBT people like it happens in the USA. Indian society still remains mostly against homosexuality. In a country where there have been cases of extremist fathers shooting their daughters dead if they run away to marry a lover, I can forsee similar honour killings happening because a gay son dared to stand up against his orthodox family.

Yet, these are reasons to not give up and keep fighting all the more. We have kept our heads down this long, now is the time to hold our heads high in defiance of 'morality' forced on us by the religious extremists. With the law on our side, the society is due to follow anytime now. It is wonderful that the Judiciary chose to be on the right side this time. Kudos to the fair Judges and persevering Queer rights activists. This is a huge day for everyone who has been fighting tooth and nail for rights of millions of people.

One steady step on the lowest rung of the ladder but we have a long climb ahead of ourselves. By no means is this the end of the battle. We shall continue to fight harder, louder and prouder against oppression and eventually victory shall be ours. It is only a matter of time.