In what turns the clock back on the rights of homosexuals in the country, the Supreme Court Wednesday set aside the historic 2009 Delhi High Court judgment that decriminalised gay sex by holding that Section 377 of the Indian Penal Code, by criminalising consensual sexual acts of adults in private, violated the principles of equality and non-discrimination in the Constitution.
Under Section 377, voluntary "carnal intercourse against the order of nature with any man, woman or animal," is punishable with imprisonment from 10 years to life.
Withdrawing the legal protection to what it called a "minuscule fraction of the country's population" comprising lesbians, gays, bisexuals and transgenders (LGBT), the Supreme Court ruled that Section 377 will continue making gay sex — "irrespective of age and consent" — an offence.
The court held that Section 377 did "not suffer from any constitutional infirmity" and that it was for Parliament "to consider the desirability and propriety of deleting Section 377 from the statute book or amend it, as per the suggestion made by the Attorney General. The AG had in March 2012 told the court that a proviso would have to be added in Section 377 to exclude sexual activity between consenting adults in private."
A bench of Justice G S Singhvi and Justice S J Mukhopadhaya set aside what it called the "legally unsustainable" Delhi High Court verdict that Section 377 violated the principles of equality and non-discrimination contained in Articles 14, 15 and 21 of the constitution.
Article 14 guarantees ensures equality before the law, Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 guarantees protection of life and personal liberty.
There was hushed silence in the packed courtroom as Justice Singhvi began reading the concluding part of the 98-page judgment — almost 21 months after the bench reserved it.
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