Supreme Court rules gay sex is illegal

In a blow to gay rights activists, the Supreme Court today upheld the constitutional validity of the penal provision making gay sex an offence punishable with upto life imprisonment.

A bench of justices G S Singhvi and S J Mukhopadhaya set aside the Delhi High Court's verdict which had in 2009 decriminalised gay sex among consenting adults in private.

The bench allowed 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, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter. With the apex court verdict, the operation of penal provision against gay sex has come into force.

As soon as the verdict was pronounced, gay activists in the court looked visibly upset.

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. 

After pronouncement of the judgement, gay rights activists said they will seek review of the apex court's verdict.

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The court passed the order on a batch of petitions of anti-gay right activists and social and religious organisations against the high court's verdict decriminalising gay sex.

The bench had reserved its order in March last year after granting day-to-day hearing of the case from February 15, 2012.

While hearing the appeal, the apex court had pulled up the Centre for its "casual" approach on the issue of decriminalisation of homosexuality and also expressed concern over Parliament not discussing such important matters and blaming judiciary instead for its "over-reach".

While pleading for decriminalisation of gay sex, the Centre had subsequently told the court that the anti-gay law in the country had resulted from British colonialism and Indian society was much more tolerant towards homosexuality.

The high court had on July 2, 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence.

Section 377 (unnatural offences) of IPC makes gay sex a criminal offence entailing punishment up to life imprisonment. 

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The petition seeking to decriminalise gay sex was filed in the high court by Naz Foundation.

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

Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the judgement.

The Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, SD Pritinidhi Sabha, Joint Action Council, RazaAcademy, astrologer Suresh Kumar Kaushal, yoga guru Ramdev's disciple S K Tijarawala, Ram Murti, Bhim Singh, B Krishna Bhat had also opposed the verdict.

The Centre had earlier informed the apex court that there are an estimated 25 lakh gay people and about seven per cent (1.75 lakh) of them are HIV-infected.

In its affidavit, the Union health ministry had said it was planning to bring four lakh high-risk 'men who have sex with men (MSM)' under its AIDS control programme and it has already covered around two lakh of them.  

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What is article Section 377 of the Indian Penal Code all about?

Framed in 1860, Section 377 states, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with ‘[imprisonment for life] or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Penetration is sufficient to constitute the carnal intercourse necessary for the offence described in this section.”

Section 377 considers the acts of sodomy, buggery and bestiality as unnatural sex offences.

According to Justice M F Saldanha, former judge of the Bombay and Karnataka high court, scrapping the law will not make much of a difference.

'People will continue to do what they want and if the parties are consenting then who filed the complaint? One needs to be careful while dealing with this issue. You cannot bring the entire issue under one. When dealing with a case of sodomy involving a child there was only Section 377 available before me. What happens in such cases when the entire section is scrapped. Hence one needs to reword the entire thing carefully,' he said