ibnlive » India

Setback for LGBT community, SC rules gay sex illegal, upholds Section 377


Ashok Bagriya,CNN-IBN
Dec 11, 2013 at 07:03pm IST

New Delhi: In a huge setback for the LGBT (lesbian, gay, bisexual and transgender) community, the Supreme Court has set aside the Delhi High Court ruling that decriminalised homosexuality and had struck down Section 377. While setting aside the 2009 Delhi High Court order, the apex court observed that Section 377 is a valid constitutional provision.

There is no constitutional infirmity in Section 377 of IPC which makes gay sex an offence punishable with up to life imprisonment, said a bench of justices GS Singhvi and SJ Mukhopadhaya while overruling the High Court verdict. However, the court said that the appropriate changes in Section 377 can be made through legislation and Parliament must take a decision on the controversial issue and that the judiciary has no role in it.

While allowing the appeals filed by various social and religious organisations challenging the High Court verdict on the ground that gay sex is against the cultural and religious values of the country the bench said Parliament is authorised to delete section 377 of IPC but till the time this penal provision is there, the court cannot legalise this kind of sexual relationship.

The bench had reserved its order in March 2012 after granting day-to-day hearing of the case from February 15, 2012. While hearing the appeal, the apex court had pulled up the Centre for its "casual" approach on the issue of decriminalisation of homosexuality and also expressed concern over Parliament not discussing such important matters and blaming judiciary instead for its "over-reach".

While pleading for decriminalisation of gay sex, the Centre had subsequently told the court that the anti-gay law in the country had resulted from British colonialism and Indian society was much more tolerant towards homosexuality.

Human rights activists expressed disappointed with the judgement. "This is a black day for the community, the judgement is a huge disappointment. We will take the issue forward, we will fight back," said human rights lawyer Arvind Narrain.

Senior BJP leader BP Singhal had challenged the High Court verdict in the Supreme Court saying such acts are illegal, immoral and against the ethos of Indian culture. Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too have challenged the judgment. The Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, SD Pritinidhi Sabha, Joint Action Council, Raza Academy, astrologer Suresh Kumar Kaushal, yoga guru Ramdev's disciple SK Tijarawala, Ram Murti, Bhim Singh, B Krishna Bhat had also opposed the verdict.

Four years back, thousands of members of the gay community celebrated as Delhi High Court legalised homosexuality. The Delhi High Court had on July 2, 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence.

The debate on the sensitive issue of gay rights began in 2004 with a petition in the Delhi High Court filed by Naz foundation. It challenged Section 377 of the Indian Penal Code that criminalised gay sex between consenting adults.

Sex between people of the same gender had been illegal in India since the 1860s, when a British colonial law classified it as 'against the order of nature'. But in September 2009, the Delhi High Court struck down a portion of Section 377 that criminalised gay sex.

However this ruling was challenged in the Supreme Court by Hindu, Muslim and Christian religious groups.

The 2009 Delhi High Court verdict

This judgement decriminalizing the gay sex had led to nationwide celebration among homosexuals. The Delhi High Court had struck down the Section 377 of Indian Penal Code (IPC) saying that it had violated the fundamental right of the individual guaranteed by the Constitution. The PIL before the HC was filed by a Delhi based NGO Naz foundation, which works among the sex workers.

Delivering the judgement a two member bench of the HC comprising justice AP Shah and Justice S Muralidhar had said, "We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15. 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 which, we believe, removes a great deal of confusion."

What is Section 377?

IPC SECTION 377-Unnatural offences. - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1*[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Gay rights activists argue that this section is against Article 14, 15, 19 and 21 of Indian Constitution, which guarantees equality and freedom of expression. These articles say that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Article 21 guarantees protection of life and personal liberty. It says that no person shall be deprived of his life or personal liberty except according to procedure established by law.

Gay rights: The struggle through the years

2001: NGO Naz Foundation files PIL seeking a reading down of Section 377

September 2004: The Delhi HC dismisses Naz Foundation's PIL on grounds that no cause had been made out and that it had no locus standi to file petition

Dec 2004: Naz approaches Supreme Court against HC order

April 2006: SC sends matter back to HC and asks it to consider case on merit

September 2006: Amartya Sen and Vikram Seth came together with other prominent Indians publicly demanding change in legal regime

June 30, 2008: Oscar Fernandez backed calls for decriminalization of consensual gay sex and Manmohan Singh called for greater tolerances towards homosexuality

July 23, 2008: Bombay High Court Judge Bilal Nazki, said that India's unnatural sex law should be reviewed

August 9, 2008: Anbumani Ramadoss, the then Union Health Minister, campaigned to change Section 377

July 2, 2009: Homosexual intercourse between consenting adults was decriminalized by Delhi High Court

March 27, 2012: The Supreme Court reserved verdict on a batch of appeals filed against Delhi High Court judgement

Gay Rights in other countries

Netherlands - Legal since 2001. First country to legalise same-sex marriage

Belgium - Legal since 2003

Spain - Legal since 2005

Canada - Legal since 2005

South Africa - Legal since 2006

Norway - Legal since 2009

Sweden - Legal since 2009

Portugal - Legal since 2010

Iceland - Legal since 2010

Mexico - Legal in Mexico City since 2010

Caribbean Netherlands - Legal since 2012

Denmark - Legal since 2012

New Zealand - Legal since 2013

France - Legal since 2013

Brazil - Legal since 2013

Uruguay - Legal since 2013

Supreme Court verdict on Section 377

Latest

More from this section

PREVIOUS  Four men who allegedly abducted 6-year-old boy for ransom arrested

NEXT  Special Cell arrests two men accused of murders