New Delhi: Gay sex in India is illegal again as the Supreme Court set aside the 2009 Delhi High Court judgement and put the onus on Parliament again. It now remains to be seen as to how long Parliament takes to make amendments to Section 377 to decriminalise homosexuality.
Parliamentarians themselves have expressed little hope that such a change in law can come any time soon. Trinamool Congress MP Derek O'Brien said that he does not see the amendment coming in the next 10 or 15 years if it has to be passed in Parliament.
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Speaking to IBN18 Editor-in-Chief Rajdeep Sardesai during a debate, Derek said, "What I fear is that we are in a minority because today we have gone back 100 years. I can tell you from my gut feeling that this ain't going to be passed in Parliament at least in the next 10 to 15 years, I don't see that happening."
Union Law Minister Kapil Sibal on Wednesday said the issue can be taken up if Parliament is allowed to function. "It's the Supreme Court's prerogative under the Constitution to test the constitutionality of a law. They are exercising their prerogative. We have the prerogative to make laws. We shall exercise our prerogative. The opinion of the Supreme Court must be respected by the government and legislature is the final arbiter of what the law should be. I won't extend my comment beyond that," said Sibal.
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MoS Home RPN Singh, too, said any legislation can be passed only if Parliament is allowed to function. "Manish Tewari has already clarified that government intends to decriminalise Section 377. The way Parliament is functioning, it's unlikely any work will be allowed by opposition," he said.
Additional Solicitor General Indira Jaising minced no words in criticising the judgement and called it against the Constitution. "I think an historic opportunity has been lost to interpret Article 21 of Constitution of India. It is an opportunity lost to live in present times and it's kind of throwback to bygone era where there was no concept of human rights," she said.
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"I do think that it is the duty and responsibility of judges to rise above their own biases and behave like true judges. I personally believe that this matter should have been referred to a larger bench of 5 judges since it concerned an issue of the interpretation of the Constitution of India," she added.
The Supreme Court said that this is not a matter for the courts to decide, putting the onus on the Government of India to pass legislation in Parliament. The Supreme Court verdict says Section 377 is constitutionally valid.
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.
Late VHP 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.
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