New Delhi: Upholding Indian Penal Code Section 377 and setting aside the Delhi High Court ruling that decriminalised homosexuality, the Supreme Court on Wednesday passed a ruling making gay sex illegal. While the decision invoked angry reactions from the LGBT community, religious groups hailed the verdict.
The Coalition for Sex Workers and Sexual Minorities Rights (CSMR) expressed their disappointment and said the decision was deeply disappointing.
ALSO SEE LGBT community reacts angrily as SC rules gay sex illegal, upholds Section 377
"We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. The decision by overturning the historic Delhi High Court judgement which recognised that Lesbian, Gay, Bisexual, Transgender (LGBT) persons are full citizens of India, attempts to stem the tide of history," CSMR said.
Upholding IPC Section 377 and setting aside the Delhi HC ruling the SC on Wednesday passed a ruling making gay sex illegal.
Calling it a black day for the LGBT community, several gay rights activists came out in the open against the verdict. "I am deeply saddened by this news. For someone who stands for fundamental rights, I am shocked they want me to go back into the closet. I will not go back into the closet," said gay rights activist Shaleen.
ALSO SEE It is a black day for the LGBT community, say human rights activists
Naz foundation, the NGO that had moved the Delhi High Court seeking scrapping of Section 377, said the judgement will take India back to what it was 100 years ago. "What does this say of us as a culture, as people? This is really very sad. It is taking us 100 years back," said Naz foundation member Anjali.
Trinamool Congress MP Derek O'Brien also expressed his reservations against the verdict on Article 377 calling it disappointing. "I'm a strong believer in LGBT rights. I'm serious about my faith, but I do have an issue with the church on this issue," he said.
ALSO SEE Setback for LGBT community, SC rules gay sex illegal, upholds Section 377
While there were angry reactions from the activists and LGBT community, religious leaders hailed the verdict. "We are happy to know that the Supreme Court has set aside the decision of the Delhi High Court which had in 2009 decriminalised sexual relation between persons belonging to the same sex," said Moulavi Ainul Haq Asari, the Moulana of Minar mosque in Kendrapara adding that unnatural sex is against the tenets of Islam and homosexuality and lesbianism are offences under the Islamic and Indian Law.
All India Muslim Personal Board also came out in support of the order. "The SC having overturned the Delhi HC order on gay sex will keep our culture intact. This has been done to respect all religions," member of All India Muslim Personal Board Zafaryab Jilani, said.
Yoga guru Ramdev welcomed the judgement saying it respects the sentiments of religious communities of India. "The court has respected the sentiments of millions of Indians and declared homosexuality a crime. Today they are talking of homosexuality, tomorrow they will talk of having sex with animals," said Ramdev.
The Delhi High Court had in 2009 decriminalised homosexuality and had struck down Section 377. The Supreme Court on Wednesday overturned the Delhi High Court verdict and observed that Section 377 is a valid constitutional provision. It held that foreign laws cannot be applied "blindfolded" to decide the constitutionality of law enacted by legislature in India.
A bench of justices GS Singhvi and SJ Mukhopadhaya held that there is no constitutional infirmity in Section 377 of IPC which makes gay sex an offence punishable with up to life imprisonment. 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.
"Since 1950 the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law," the judgement said.
It also further said that the ones "who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty."
Supreme Court verdict on Section 377
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