A two-judge bench struck down a landmark Delhi high court ruling in 2009 which found that section 377 of the Indian penal code prohibiting “carnal intercourse against the order of nature” infringed the fundamental rights of Indians.
The decision four years ago to decriminalise gay sex emboldened the still largely closeted homosexual community which has since campaigned publicly against widespread discrimination and ignorance.
But the Supreme Court bench, headed by GS Singhvi on his last day before retirement, found the high court had overstepped its authority and that a law passed by the British in 1860 was still constitutionally valid.
“It is up to Parliament to legislate on this issue,” Singhvi said in the judgment which crushed the hopes of activists who had fought the case and led to tears outside the court in central New Delhi.
The 2009 ruling was strongly opposed by religious groups, particularly leaders of Muslim and Christian communities, who appealed to the Supreme Court and were delighted with Wednesday’s outcome.
“Such a decision was totally unexpected from the top court. It is a black day for the community,” Arvind Narayan, a lawyer of the Alternative Law Forum gay rights group, told reporters outside court.
“We are very angry about this regressive decision of the court.”
Law minister Kapil Sibal promised to review the ruling, but a new gay rights law that would have limited public support is unlikely to pass the Parliament before general elections next year.
“We have the right to make laws and we will exercise that. If the Parliament runs we shall take up this issue,” Sibal told reporters.
Reacting to the ruling, Harish Iyer, an equal rights activist, said gays have a constitutional right to be who they are. “The judgment criminalises gay sex but it can’t take away my right to be gay. The lawmakers or the country shouldn’t be bothered with what happens in the confines of my bedroom, if the act is with my consent,” Iyer said.
He further added that if it is possible a review petition must be filed.
Terming this day as a black day, Anjali Gopalan from the Naz Foundation said, “How could they do this? We will read the judgment carefully and look at all our legal recourses,” she said.
The activists felt that a big battle for the community lies ahead and there is an urgent need to rebuild the movement for gay rights.
“The next step is to rebuild the earlier movement against section 377 and every other form of violence, legal and non-legal, against LGBT communities. The Delhi high court order did not call for the repeal of 377 nor did it address any of the issues that actually affect poor and marginalised LGBT communities across the country,” said activist Ashley Tellis.
Human rights ‘body blow’
Amnesty International called the decision a “body blow to people’s rights to equality, privacy and dignity”, while a legal challenge from gay rights groups is also possible.
Religious groups who opposed the 2009 repeal hailed the reinstatement of the law, which is rarely invoked in practice.
Activists say police use it to harass and intimidate gays who can be threatened with sentences of up to life imprisonment.
“We know that homosexuality is against nature,” general secretary of the All India Muslim Personal Law Board, Abdul Raheem Quraishi, said. “It goes against all its laws and it is what led to the spread of HIV/AIDS.”
The United Nations Development Programme on HIV/AIDS had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS which affects an estimated 2.5 million people here.
Gay sex has long been a taboo subject in India, where homophobic tendencies abound and many still regard being gay as a mental illness.
The 2009 ruling was widely described as India’s “Stonewall” moment in reference to protests in New York 40 years earlier after a police raid on a gay bar which helped launch the gay and lesbian rights movement.
In recent years, the community in India has raised its profile through gay pride marches, magazines and events which have encouraged many to come out of the closet.
But the country still has no major gay public figures in politics, entertainment or sport.
Source: http://www.hindustantimes.com/india-news/sc-says-gay-sex-illegal-lgbt-rights-activists-angry/article1-1161395.aspx