When questioned earlier by a Swedish delegate on the state of homosexual rights in India at the Periodic Review before the United Nations Human Rights Council, the Solicitor General of India appearing on behalf of India said :
“Around the early 19 Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. ...
As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted s.377 in the Indian Penal Code, which brought in the concept of “sexual offences against the order of nature”. Now in India we didn't have this concept of something being “against the order of nature”. It was essentially a Western concept which has remained over the years. Now homosexuality as such is not defined in the Indian Penal Code, and it will be a matter of great argument whether it's “against the order of nature”.
In arguing the case against morality
Moral indignation, howsoever strong, is not a valid basis for overriding individuals's fundamental rights of dignity and privacy.In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view.
CONCLUSION
Won on the question of equality & inclusiveness
The notion of equality in the Indian Constitution flows from the ‘Objective Resolution’ moved by Pandit Jawaharlal Nehru on December 13, 1946. Nehru, in his speech, moving this Resolution wished that the House should consider the Resolution not in a spirit of narrow legal wording, but rather look at the spirit behind that Resolution. 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.”
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 anti-thesis 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.
Secondly, we clarify that our judgment will not result in the re-opening of criminal cases involving Section 377 IPC that have already attained finality.
We allow the writ petition in the above terms.
JULY 2, 2009 CHIEF JUSTICE
S.MURALIDHAR, J
Phew, good read
By the looks of the arguments put forward i agree that is really a landmark case. Lets see how it plays out in the rest of the country.