Homosexuality is criminal offence: Supreme Court

In a blow to gay rights activists, the Supreme Court today upheld the constitutional validity of the penal provision making gay sex an offence punishable with upto life imprisonment.

A bench of justices G S Singhvi and S J Mukhopadhaya set aside the Delhi High Court's verdict which had in 2009 decriminalised gay sex among consenting adults in private.

The bench allowed the appeals filed by various social and religious organisations challenging the high court verdict on the ground that gay sex is against the cultural and religious values of the country.

The bench, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter.

With the apex court verdict, the operation of penal provision against gay sex has come into force.

As soon as the verdict was pronounced, gay activists in the court looked visibly upset. While pleading for decriminalisation of gay sex, the Centre had subsequently told the court that the anti-gay law in the country had resulted from British colonialism and Indian society was much more tolerant towards homosexuality.

The Delhi High Court had on July 2, 2009 decriminalised gay sex as provided in Section 377 of the Indian Penal Code (IPC) and had ruled that sex between two consenting adults in private would not be an offence.

Section 377 (unnatural offences) of IPC makes gay sex a criminal offence entailing punishment upto life imprisonment.

The petition seeking to decriminalise gay sex was filed in the high court by Naz Foundation.

Senior BJP leader B P Singhal, who died in October last year, had challenged the high court verdict in the apex court, saying such acts are illegal, immoral and against the ethos of the Indian culture.Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the judgement.
The Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, SD Pritinidhi Sabha, Joint Action Council, Raza Academy, astrologer Suresh Kumar Kaushal, yoga guru Ramdev's disciple S K Tijarawala, Ram Murti, Bhim Singh, B Krishna Bhat had also opposed the verdict.

The Centre had earlier informed the apex court that there are an estimated 25 lakh gay people and about seven per cent (1.75 lakh) of them are HIV-infected.

In its affidavit, the Union Health Ministry had said it was planning to bring four lakh high-risk 'men who have sex with men (MSM)' under its AIDS control programme and it has already covered around two lakh of them. The bench said Parliament is authorised to delete section 377 of IPC but till the time this penal provision is there, the court cannot legalise this kind of sexual relationship.

After pronouncement of the judgement, gay rights activists said they will seek review of the apex court's verdict.

The court passed the order on a batch of petitions of anti-gay right activists and social and religious organisations against the high court's verdict decriminalising gay sex.

The bench had reserved its order in March last year after granting day-to-day hearing of the case from February 15, 2012.

While hearing the appeal, the apex court had pulled up the Centre for its "casual" approach on the issue of decriminalisation of homosexuality and also expressed concern over Parliament not discussing such important matters and blaming judiciary instead for its "over-reach".


The legal fight of gay rights activists has witnessed many twist and turns in courts.
When the matter was being adjudicated in the Delhi High Court, Home Ministry and Health Ministry took a contradictory stand on section 377 of the IPC with the former favouring continuation of the penal provision and the latter supporting scrapping of the provision.

The Centre, however, took a uniform stand when the appeal against the Delhi High Court judgement for decriminalising gay sex was heard in the apex court.

During the arguments in the case before the apex court, the Centre had supported decriminalisation of gay sex saying the anti-gay law in the country had resulted from British colonialism and the Indian society was much more tolerant towards homosexuality.

The legal fight for gay rights began in the Delhi High Court when Naz Foundation, working for the welfare of lesbians, gays, bisexuals and transgenders (LGBT), filed a PIL for decriminalising gay sex.

The high court had, however, initially twice dismissed the plea and the NGO thereafter moved the Supreme Court which directed the high court to hear the case and decide the issue on merits.

After a marathon hearing, the Delhi High Court had allowed the plea of gay rights activists and had decriminalised gay sex among consenting adults in private.
Thereafter, various social, religious and child rights organisations, including various individuals, had approached the apex court challenging the high court's verdict.