SC shocks India on gay sex issue

The bench of Justices G S Singhvi and S J Mukhopadhaya reversed the Delhi high court’s 2009 verdict and held that the 150-year -old Section 377 criminalizing gay sex, “does not suffer from the vice of unconstitutionality”. The SC judgment will turn the clock back, and is being viewed in India and globally as retrograde. The possibility of police harassment of homosexuals can no longer be ruled out. The bench said that, in the light of plain meaning and legislative history of the section, we hold that Section 377 IPC will apply irrespective of age and consent. It added that the section does not discriminate against any group with a particular sexual preference, a stand diametrically opposite to that taken by the Delhi high court.

Justice Singhvi said that, it is relevant to mention here that Section 377 of the IPC does not criminalize particular people or identity or orientation. It merely identifies certain acts which, if committed, will constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation.

A crowd of gay activists, quite a few of whom were in advocate’s uniform, had waited inside a packed court room in expectation of a positive verdict. Justice Singhvi, for whom it was the last day in office, sat with Chief Justice P Sathasivam (as is the tradition of honouring a judge on his last day).Three minutes later, Singhvi finished reading the concluding part of the 98-page judgment, and pronounced that the Supreme Court was overturning the Delhi high court’s verdict. Smiles disappeared. Some of the activists cried loudly.

However, a clarification followed. The judges said, “Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the attorney general.”

The AG, G E Vahanvati, had argued that a group of ministers which looked into the issue relating to the constitutionality of Section 377 IPC had recommended that there was no error in the HC order. In other words, the government didn’t have a problem with the decriminalization of gay sex—but the SC could take a final view.

Vahanvati had also said, “The declaration granted by the high court may not result in the deletion of Section 377 IPC from the statute book, but a proviso (exception) would have to be added to clarify that nothing contained therein shall apply to any sexual activity between two consenting adults in private.” He had also stressed that the “court must take cognizance of the changing social values and reject the moral views prevalent in Britain in the 18th century.”

The apex court observed that the Law Commission of India, in its 172nd report, had recommended the deletion of Section 377 of the IPC.

Naz Foundation has said it’ll go for a review petition against this judgment Govt has said it will support anyone who seeks a review of the SC verdict Govt could amend Section 377, but given the logjam in Parliament, is unlikely to do so before next Lok Sabha polls

The court said though the Law Commission of India in its 172nd report recommended deletion of Section 377 and that the Centre has chosen not to challenge the Delhi high court verdict, “Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision.” Parliament has not amended the law either, it added.

Section 377 of IPC, enacted by British 153 years ago in 1860, terms consensual anal sex an “unnatural offence” and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not “against the order of nature”.

It says: “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 10 years, and shall also be liable to fine.” It also explains that “penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section”. Allowing the appeals against the HC verdict, filed by a host of organizations whose arguments were tinged with religion-guided views, the bench upheld the constitutional validity of Section 377.

On July 2, 2009, the HC division bench of then Chief Justice A P Shah and Justice S Muralidhar had declared “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21 (right to life), 14 (right to equality), and 15 (non-discrimination on grounds of sex and gender) of the Constitution.” But the SC said Naz Foundation, on whose petition the HC had given the ruling, had “miserably failed to furnish particulars of the incidents of discriminatory attitude exhibited by the state agencies towards sexual minorities and consequential denial of basic human rights to them”.

“While reading down Section 377, the division bench of the HC overlooked that a miniscule (sic) fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders and in the last more than 150 years less that 200 persons have been prosecuted for committing offence under Section 377 IPC and this cannot be made a sound basis for declaring the section ultra vires (violative of) the provisions of Articles 14, 15 and 21 of the Constitution,” the apex court said.