SC says gay sex punishable,withdraws legal protection to LGBT community

SC brushed away Delhi HC's 2009 judgment decriminalising gay sex.

Written by Utkarsh Anand | New Delhi | Published: December 12, 2013 3:55:57 am

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.

The silence was soon replaced by sobs from many members of the LGBT community who had gathered holding hands in a show of affection and solidarity which soon turned into anguish and anger.

The apex court noted that while reading down Section 377,the High Court had overlooked that a “minuscule fraction of the country’s population constitute LGBT” and in the last more than 150 years,less than 200 persons have been prosecuted for committing offence under Section 377 IPC.

“This cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14,15 and 21,” it said.

The bench discarded the “anxiety” shown by the High Court “to protect the so-called rights of LGBT persons” and said that it had wrongly relied upon judgments of other jurisdictions which may be informative in relation to the plight of sexual minorities but it could not be applied “blindfolded” for deciding the constitutionality of the law enacted by the Indian legislature.

It said that the HC should have exercised “self-restraint” before tinkering with the law,especially in view of the fact that the legislature has chosen not to amend the law or revisit it although there were around 30 amendments in the IPC till date and the 172nd Law Commission Report also recommended deletion of Section 377.

“This shows that Parliament,which is undisputedly the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion 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. While this does not make the law immune from constitutional challenge,it must nonetheless guide our understanding of character,scope,ambit and import,” it said.

The court held that those who indulged in carnal intercourse “against the order of nature” constituted different classes and they could not claim that Section 377 suffered from the vice of arbitrariness and irrational classification.

Countering the argument that Section 377 targeted LGBTs,the court said that it did not criminalize a particular people or identity or orientation. “It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation,” it said.

The bench added that not adequate details were adduced to hold that LGBTs were being subjected to discriminatory treatment either by State or its agencies or the society.

The bench,at the same time,also said that “no uniform test” can be laid to classify acts as “carnal intercourse against the order of nature”. It said that what will constitute an offence under Section 377 can only be determined with reference to the act itself and the circumstances in which it is executed.

“We are apprehensive of whether the court would rule similarly in a case of proved consensual intercourse between adults. Hence it is difficult to prepare a list of acts which would be covered by the section,” it said while allowing a bunch of appeals filed by a group of persons,religious institutions against the HC ruling.

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