Supreme Court overturns Delhi High Court ruling, makes gay sex punishable

Setting aside a historic 2009 Delhi high court judgment that decriminalised gay sex, the Supreme Court on Wednesday upheld the constitutional validity of the penal provision that makes gay sex an offence, punishable with up to life imprisonment.

A bench of justices SJ Mukhopadhaya and GS Singhvi, who retired on Wednesday, declared that Section 377 of the Indian Penal Code does not “suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable”.

Apart from the appellants, mostly faith and religious groups, the judgment drew criticism from across quarters. While some called Wednesday a dark day for freedom, others said the Supreme Court had taken India back to the dark ages.

Justice Singhvi, otherwise known for his pro-people stand, antagonised the huge LGBT community, rights activists and netizens after his last judgment. Hopeful members of the LGBT community and rights activists gathered at the courtroom since morning left dejected, only to be seen reassuring each other to ‘never give up’.

The bench also shifted the onus on the Union government to make any amendment in the law, saying: “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting section 377 of the IPC from the statute book or amend the same as per the suggestion made by the attorney general.”

“The judgment reflects the bias of the judge as he terms the partner in sexual act as victim without going into consensual part of the act,” said Lawyers Collective director, advocate Anand Grover.

“The Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and transgender persons that they are criminals in the eyes of the law.”

Delhi student Tanushree, who has been living with her female partner for the past two years, said: “Supreme Court has pushed us back into the police net. We have the right to live the way we want to live, including expressing our sexuality. But we will not give up,” she said.

Additional solicitor general Indira Jaising criticised the judgment as well saying that a historic opportunity had been lost to interpret Article 21 of the Constitution of India. “It is an opportunity lost to live in present times and it’s kind of a throwback to a bygone era where there was no concept of human rights,” said Jaising.

The Union government had earlier informed the apex court that there are an estimated 25 lakh gay people (men who have sex with men) and about 7% (1.75 lakh) of them are HIV positive. As per the reports and studies conducted over the years in Western countries, in every country a range of population from 2-13%, have same sex preferences. The exact number of LGBT population in India is not known yet.

The Delhi high court had on July 2, 2009, decriminalised gay sex, saying sex between two consenting adults in private would not be an offence. The petition seeking to decriminalise gay sex was filed in the high court by NGO Naz Foundation.

Senior BJP leader BP Singhal, who died in October last year, had challenged the high court verdict in the apex court, saying such acts are illegal and against the ethos of the Indian culture.

Religious organisations including All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the high court’s judgment.

The judgment elicited a mixed response from politicians, from denouncing the decision to dilly-dallying on whether the legislature will delete Section 377. Janata Dal United leader Shivanand Tiwari said: “The SC’s decision is regressive. The court must review it.”

Union minister Kabil Sibal, however, said: “The opinion of the Supreme Court must be respected by the government and legislature is the final arbiter of what the law should be.”