Gay sex illegal; Section 377 a valid provision, says Supreme Court

Section 377 which terms same gender sexual contact a criminal offence is often used to harass the gay community—in the process making them vulnerable to HIV/AIDS

 
By Kundan Pandey
Last Updated: Monday 17 August 2015

gay sex illegalThe Supreme Court on Wednesday declared gay sex illegal and said that Section 377 of Indian Penal Code (IPC), which terms same-sex relationship as an offence, is a valid constitutional provision. Overruling the 2009 Delhi High Court judgement which decriminalised gay sex, the Supreme Court suggested that appropriate changes can be made to section 377 by Parliament.

The bench of justices G S Singhvi and S J Mukhopadhaya gave its verdict on a few pending petitions that challenged the high court verdict on the LGBT (lesbian, gay, bisexual and transgender) community. 

Section 377 and its link to HIV

Violation of Section 377 of IPC is punishable with imprisonment for 10 years (or even for life). The section is often used to harass the gay community—in the process making them vulnerable to HIV/AIDS. The health ministry's National AIDS Control Organisation (NACO) has been against the penal provision because it says that Section 377 creates obstacles in carrying out AIDS awareness programmes among homosexuals.

High Court decriminalised homesexuality 

In 2009, the Delhi High Court had upheld the stand taken by non-profits Lawyers Collective and Naz Foundation, which in its petition had challenged the constitutional validity of Section 377 on the ground that it violated the right to privacy, dignity and health, right to equality and non-discrimination, and the right to freedom of expression. Opposing the high court decision, various religious groups had approached the apex court which reserved its order in March last year after a few hearings. 

Civil society says verdict regressive

The civil society has termed the Supreme Court's decision shocking and is planning to oppose it at various levels. N Sarojini from a Delhi-based non-profit Sama: Resource Group for Women and Health has called the decision a shocking verdict. 

They are going to organise a protest at Jantar Mantar in the evening. “The ruling by India’s Supreme Court making consensual same-sex conduct between adults a criminal offence marks a black day for freedom in India,” said human rights group Amnesty International India in a press statement. G Ananthapadmanabhan, chief executive at Amnesty International India said, “This decision is a body blow to people’s rights to equality, privacy and dignity. It is hard not to feel let down by this judgment, which has taken India back several years in its commitment to protect basic rights," he said.

Anand Grover, director of Lawyers Collective, the body which represented Naz Foundation before both Delhi High Court and Supreme Court, noted “I am extremely disappointed with the judgement. 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. The movement for LGBT equality is unstoppable, rooted as it is in the dignity and resilience of LGBT persons. We will be filing a review of the present decision as soon as it is available.”

What happened in 2008

When the Delhi High Court was hearing the petition by Naz Foundation in 2008, it brought forth the rift between two Union ministries on section 377. The ministry of health and family welfare wanted changes in the section, while the home ministry contended that only victims can demand a change in laws—not a third party.

 

 


Judgement of the Supreme Court of India regarding the constitutional validity of Section 377 of the Indian Penal Code, 11/12/2013

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