JOIN USThe Supreme Court on Wednesday held homosexuality illegal by setting aside a Delhi High Court judgment, which had decriminalised sexual relation among consenting adults belonging to the same sex.
While upholding constitutional validity of a legal provision, the apex court said Section 377 of the Indian Penal Code merely regulated sexual conduct and did not hit people with a particular sexual orientation. The court, however, left the question of “desirability and propriety” of deletion of the particular provision to Parliament.
The verdict invoked outrage among activists. While some called it “a disgrace”, others described it as “a retrograde and medieval step”. The Centre has indicated that it could take legislative steps to deal with the issue, provided there was some consensus.
Home Minister Sushilkumar Shinde, however, said a move to bring a piece of legislation to amend Section 377 may face opposition in Parliament as there was no political consensus.
A bench of justices G S Singhvi and S J Mukhopadhaya said the high court verdict, reading down Section 377 in 2009, was not right as there was no record about its abuse since only 200 people were prosecuted so far under the law.
“We hold that Section 377 IPC would apply irrespective of age and consent. It is relevant to mention here that it does not criminalise 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,” the bench said in a 98-page verdict. Section 377 carries a maximum penalty of life term.
Commenting on angry reactions over the verdict, Justice Singhvi, who retired on Wednesday, said people should first read it. He was instrumental in passing many notable verdicts, including cancellation of 122 2G licences and restricting the use of red beacons.
Dealing with a bunch of appeals, the court noted that the high court had overlooked that lesbians, gays, bisexuals or transgenders (LGBTs) comprised a miniscule fraction of the country’s population.
The apex court also went into details of what constituted the offence.
The court brushed aside charges by a number of activists and NGOs, including NAZ Foundation, which first raised the issue in the high court. It was alleged that the provision was used to harass, blackmail and torture the LGBT community.
The bench also pointed out that the “apex court was not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards legitimacy of its purpose and need.”
Despite arguments that Section 377 violated fundamental rights, the court pointed out that since 1950, around 30 amendments were made to the statute, the most recent coming in 2013. But the legislature has chosen not to amend the law or revisit it.
During the hearing, the attorney general, appearing for the Centre, submitted that a Group of Ministers, which looked into the constitutionality of Section 377, had said that there was no error in the high court order.
The Health Ministry had submitted that MSMs (men who have sex with men) and female sex workers were at a high risk of getting HIV/AIDS. The 2009 data put the estimated number of MSMs at 12.4 lakh.
Immediately after the verdict, Law Minister Kapil Sibal told reporters that the court had exercised its prerogative. “We may also exercise our prerogative (of amending the law),” he said. Noted writer Vikram Seth called the verdict “a disgrace” while the country’s lone woman Additional Solicitor General Indira Jaising said a historical opportunity to expand constitutional values was lost by the verdict. She termed it “a medieval step”.
Senior advocate Colin Gonsalves called it a retrograde step while advocate Prashant Bhushan said it was a sad day for all liberal values.