New Delhi : The Supreme Court Wednesday held consensual sex between adults of the same gender a criminal offence, leaving the lesbian, gay, bisexual and transgender community dejected.
As scores from the community came out on the streets to protest the verdict, the government indicated they will take the legislative route on decriminalisation of same gender sexual relations.
Setting aside a Delhi High Court verdict of 2009 that decriminalised sexual relations between people of the same sex, Justice G.S. Singhvi and Justice S.J. Mukhopadhayay said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the high court is legally unsustainable.”
The section holds that same-gender sexual relationship is against the order of nature and an offence entailing imprisonment up to life sentence.
“We would like to make it clear that this court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 of the IPC and found that the said section does not suffer from any constitutional infirmity,” Justice Singhvi said.
But the court said: “The competent legislature will be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend.”
The court also said the issue has repeatedly come up for debate, but the government chose not to amend the law or revisit it.
The ruling came as a major blow for gay rights activists, who pledged to fight for their rights. Many activists who were in the court broke down. In the evening, hundreds from the LGBT community staged angry demonstrations at Jantar Mantar.
Reacting to the court ruling, Law Minister Kapil Sibal said: “It is the prerogative of the Supreme Court to judge the constitutionality and validity of the law. The opinion of the Supreme Court must be respected by the government. They have exercised their prerogative, we shall exercise ours.”
Asked how soon the government will bring the matter in parliament, Sibal said: “Well, if parliament runs, we shall take it up.”
Information and Broadcasting Minister Manish Tewari said the government will definitely take into cognisance the verdict of the Supreme Court.
“As far as the government is concerned, if I recall correctly, in 2009 or 2010 when M. Veerappa Moily was the law minister, he had said that Section 377 of IPC should be decriminalised. But since a decision has come, the government will take cognisance of it and let you know.”
Expressing his deep disappointment with the verdict, gay activist Ashok Row Kavi the fight will go on.
“We are back to square one. But we will fight for our rights. It is essential to note that this has nothing to do with morality and religion.
“We are only asking for inclusive rights in the society. This is just a type of orientation a lot of people are involved in,” he added.
Referring to the 172nd Law Commission Report, which had specifically recommended deletion of the controversial section, the court said: “The issue has repeatedly come up for debate. However, 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,” the apex court said.
“Such a conclusion” the court said, “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.”
However, the court said: “While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import.”
The apex court verdict upholding Section 377 came 21 months after it had reserved its verdict in March 2012.
It allowed appeals filed by social and religious groups challenging the high court verdict on the ground that gay sex was against cultural and religious values of the country.
Activist Sohini Ghosh called the judgment “not just a betrayal of the LGBT community but of the values enshrined in the constitution”.
“Our fight will go on. We will fight till the bitter end,” she said.
Pallav Patankar from Humsafar Trust said the verdict was a big blow to the community.
“The Supreme Court has put the decision back to parliament. The reason it went to the SC was because parliament refused to discuss issues related to alternate sexuality. There is a need to address the issue,” he said.
The government had earlier told the apex court that there were an estimated 2.5 million gays in India and about seven percent of them were HIV infected.
In its affidavit, the union health ministry said it was planning to bring 400,000 high-risk men who have sex with men under its AIDS control programme — and that half of them have already been covered.