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India: Supreme Court rules gay sex is illegal

11th Dec 2013

[Human rights activists and the LGBT community are disappointed with the SC judgement. (PTI photo)]

 

New Delhi, (Agencies): In a jolt to the gay community in India, the Supreme Court on Wednesday held that consensual sex between adults of the same gender was an offence.

A two-judge SC bench cancelled a 2009 Delhi high court ruling that section 377 of the Indian penal code prohibiting people from engaging in “carnal acts against the order of nature” infringed the fundamental rights of Indians.

“It is up to Parliament to legislate on this issue,” judge GS Singhvi, head of the two-man bench, said in the ruling which found the ban to be constitutionally valid.  The judgment was pronounced by justice Singhvi on the day he was scheduled to retire.

While hearing the appeal, the apex court had pulled up the Centre for its “casual” approach on decriminalisation of homosexuality and also expressed concern over Parliament not discussing such important issues and blaming the judiciary instead for its “overreach”.

 

While pleading for decriminalisation of gay sex, the Centre had told the court that the anti-gay law in the country had resulted from British colonialism and the 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 IPC and ruled that sex between two consenting adults in private would not be an offence.

The HC decision was strongly opposed by religious groups such as All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance.

“Such a decision was totally unexpected from the top court. It is a black day for the community,” Arvind Narayan, a lawyer of the Alternative Law Forum gay rights group, told reporters.

“We are very angry about this regressive decision of the court.”

Protests were expected later on Wednesday from the gay community that is still largely closeted but was emboldened by the 2009 ruling.

Though prosecutions under section 377 are rare, conviction carries a fine and a maximum 10-year jail sentence and it is used by police to harass gay couples, activists say.

“We will explore all options, probably look into the option of a review petition,” T Tandon, a lawyer appearing for Naz Foundation, a non-profit group that works with HIV-AIDS patients, said outside the court.

“The movement of gay rights is so much stronger now. It is not 2001, it is 2013. You can’t have a decision like this.”

Dominic Emmanuel, spokesman of the Delhi Catholic Archdiocese, said before the verdict that the church was ready to accept any decision from the Supreme Court.

“Though we did not welcome the decision of the high court, we did not object to it. If there is a decision like that from the Supreme Court, we will not object to it either,” he told a TV channel.

“The church has a very clear stand on people with different sexual orientations. Though they are different from … normal people, they should be respected, accepted and there should be no signs of discrimination against them.”

Gay sex has long been a taboo subject in India, where many still regard homosexuality as a mental illness.

In recent years, however, the country’s gay community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai which have created awareness and encouraged many to come out of the closet.

Jeffrey O’Malley, director of the United Nations Development Programme on HIV/AIDS, had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS.

India has an estimated 2.5 million people living with the virus.

 

http://www.hindustantimes.com/india-news/supreme-court-sets-aside-delhi-high-court-order-says-gay-sex-is-illegal/article1-1161395.aspx

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