Gay sex is a crime: Indian Supreme Court

Indian Supreme Court turned down Delhi High Courts’ ruling which decriminalised sexual relationship between persons belonging to same-sex. The issue raised on Section 377 (unnatural offences) of the Indian Penal Code (IPC) which makes gay sex a criminal offence entailing punishment up to life term.

Delhi High Court had on July 2, in 2009 ruled that sex between two consenting adults in private would not be an offence. “We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution,” a bench comprising chief justice AP Shah and Justice S Murlidhar said.

The high court also said, “the provision of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors”. The court clarified that “by adults, we mean everyone who is 18 years of age or above”.

But the Supreme Court bench of Justice G S Singhvi and Justice SJ Mukhopadhaya, headed by Justice GS Singhvi on his last day before retirement, after hearing petitions of anti-gay right activists besides social and religious organisations against the earlier Delhi high court order of  2009, found the high court had overstepped its authority and the law passed by the British in 1860 was still constitutionally valid. Thus the apex court upheld Section 377 of IPC that makes anal sex a punishable offence.

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

In reply, the bench stated that Parliament is authorised to remove Section 377, but as long as this provision is there, the court cannot legalise this kind of sexual relationship.

“The legislature must consider deleting this provision (Section 377) from the law as per the recommendations of the attorney general” Justice GS Singhvi stated. “It is for the legislature to look into desirability of deleting section 377 of the IPC,” the court said.

While several human rights activists and other organisations urged the Indian government to take a stand and join other Commonwealth states like Australia and New Zealand that have already abolished this colonial law. “This decision is a body blow to people’s rights to equality, privacy and dignity,” G Ananthapadmanabhan of Amnesty International India said in a statement.

In response to this decision, India’s Law Minister Kapil Sibal told reporters that the government would respect the ruling but did not say whether there were plans to amend the law. Correspondents say any new legislation is unlikely soon – general elections are due next year.