July 2 (Bloomberg) -- An Indian court ruled gay sex between consenting adults was not a crime, ordering that the rights of citizens were violated by parts of a 150-year-old colonial-era law that made it illegal.

“We declare that section 377 of the Indian Penal Code, in so far as it criminalizes consensual acts of others in private,” runs counter to basic human rights guaranteed by articles of the Indian constitution, Chief Justice A.P. Shah of the Delhi High Court said in a ruling.

Section 377, drafted by British rulers in 1860, has drawn criticism from public health activists as a barrier in the fight against HIV/AIDS. Parts of the law will continue to apply to forms of non-consensual sex, the ruling said.

Anjali Gopalan, director of the Naz Foundation which works to prevent the spread of HIV and began a legal challenge to the law in 2001, welcomed the ruling.

“We have been fighting for this right for eight years. Gay people are part of this democracy,” she said as around 100 gay and lesbian activists celebrated outside the court gates.

Naz had argued the law violated rights to privacy and equality guaranteed under the constitution, and was used to harass or blackmail gay men and women in return for money or sex.

“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,” said UNAIDS Executive Director Michel Sidibé in a statement. “Oppressive laws such as section 377 drive people underground, making it much harder to reach them with HIV prevention, treatment and care services.”

Gay Pride

Thousands of people attended gay pride marches in four Indian cities including the capital, New Delhi, on June 28, highlighting the growing confidence of gay men and women in India, where sexual attitudes are largely conservative.

Section 377, which remains on the Indian law books more than four decades after Britain decriminalized consensual gay sex in 1967, outlawed “carnal intercourse against the order of nature, with any man, woman or animal”. Offenders faced imprisonment and a fine, though prosecutions were rare.

During seven months of hearings, India’s Home Ministry reflected conservative views among many of the nation’s politicians, arguing the ban on gay sex protected public health and morals.

HIV Fight

In an affidavit, the ministry also said Indian society was not tolerant of homosexuality. New ministers though could bring “new thinking” on the subject, Home Minister Palaniappan Chidambaram said yesterday, according to the Indian Express newspaper.

India’s National Aids Control Organization, a department that operates under the Ministry of Health and Family Welfare, in its court application said section 377 and the suspicion it breeds is obstructing its HIV/AIDS prevention program.

About 2.4 million of the world’s 33 million people infected with HIV live in India, according to a report released last year by UNAIDS, the program that coordinates the United Nations’ response to the epidemic. About 1 million of India’s cases are in women, the report said.

Delhi’s High Court had dismissed the Naz petition in 2004 arguing the foundation was not an affected party under the law. When the order was challenged before the Supreme Court, judges directed the lower bench to hear arguments in the light of present-day issues facing India.

Law Minister Veerappa Moily said in an interview last week that Chidambaram had sought the views of state home, health and law ministers on section 377. The matter is “sub judice but the government has initiated talks,” Moily said.

To contact the reporter on this story: P.S. Patnaik in New Delhi at indianews@bloomberg.net.

Last Updated: July 2, 2009 05:43 EDT