December 11, 2013
NEW DELHI: The Supreme Court on Wednesday set aside the decision of the Delhi high court, which had in 2009 decriminalized sexual relation between persons belonging to same sex.
A bench of justices G S Singhvi and S J Mukhopadhaya upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offence.
December 11, 2013
NEW DELHI: The Supreme Court on Wednesday set aside the decision of the Delhi high court, which had in 2009 decriminalized sexual relation between persons belonging to same sex.
A bench of justices G S Singhvi and S J Mukhopadhaya upheld the constitutional validity of Section 377 of Indian Penal Code that makes anal sex a punishable offence.
LGBT activists, whose sexual relationships had been legalized by the Delhi HC, broke down inside the court room.
Parliament is authorized to remove Section 377, but as long as this provision is there, the court cannot legalize this kind of sexual relationship, the SC bench observed.
"It is for the legislature to look into desirability of deleting section 377 of the IPC," the apex court said.
The SC bench allowed the appeals filed by various social and religious organizations challenging the high court verdict on the ground that gay sex is against the cultural and religious values of the country.
The bench, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter.
With the apex court verdict, the operation of penal provision against gay sex has come into force.
After pronouncement of the judgement, gay rights activists said they will seek review of the apex court's verdict.
The court passed the order on a batch of petitions of anti-gay right activists and social and religious organizations against the high court's verdict decriminalizing gay sex.
The bench had reserved its order in March last year 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 decriminalization of homosexuality and also expressed concern over Parliament not discussing such important matters and blaming judiciary instead for its "over-reach".
While pleading for decriminalization 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.
The Delhi high court had on July 2, 2009 decriminalized 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.
Section 377 (unnatural offences) of IPC makes gay sex a criminal offence entailing punishment upto life imprisonment.
The petition seeking to decriminalize gay sex was filed in the high court by Naz Foundation.
Senior BJP leader B P Singhal, who died in October last year, had challenged the high court verdict in the apex court, saying such acts are illegal, immoral and against the ethos of the Indian culture.
Religious organizations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the judgement.
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 S K Tijarawala, Ram Murti, Bhim Singh, B Krishna Bhat had also opposed the verdict.
The Centre had earlier informed the apex court that there are an estimated 25 lakh gay people and about seven per cent (1.75 lakh) of them are HIV-infected.
In its affidavit, the Union health ministry had said it was planning to bring four lakh high-risk 'men who have sex with men (MSM)' under its AIDS control programme and it has already covered around two lakh of them.
Gay activists disappointed with SC verdict on homosexuality
The NGO, which was the first to file the petition for decriminalizing section 377 of IPC, on Wednesday expressed dissatisfaction over the Supreme Court judgement upholding the constitutional validity of the penal provision making gay sex a punishable offence.
"We are disappointed with the judgement. We think the judgement is not correct in law. We will take appropriate legal recourse," senior advocate Anand Grover, who argued the case for the NGO Naz Foundation, said after the verdict was pronounced.
Activists of the NGO who were present inside the court room were visibly upset, while those outside said, "is judgement se hamara jeene ka adhikaar chhin gaya hai (this verdict has taken away our right to life)".
They also demanded that the 1861 legislation, by which section 377 is a criminal offence, be changed.
"Kya yeh crime hai ki ek bachcha lesbian ya gay paida hota hai (is it a crime that a child is born a lesbian or gay)? Yeh toh natural feeling hota hai (this is a natural feeling). Yeh kisi ka hak nahi hai ki LGBT ya gays pe dosh lagaya jai (no one has the right to blame LGBTs or gays)," the activists commented.
The verdict came on the petitions of several anti-gay right activists, social and religious organisations against the 2009 verdict of the high court, which decriminalized gay sex.
Courtesy: PTI
