Supreme Court upholds Section 377 criminalizing homosexual sex

Blow to gay rights as SC sets aside HC decision, says it’s up to the Parliament to legislate on the issue


The Supreme Court decision sets aside a landmark Delhi high court decision in 2009 which had overturned the colonial-era ban on homosexual sex.
 Photo: Pradeep Gaur/Mint
The Supreme Court decision sets aside a landmark Delhi high court decision in 2009 which had overturned the colonial-era ban on homosexual sex. Photo: Pradeep Gaur/Mint

New Delhi: In a blow to gay rights in India, the Supreme Court on Wednesday overturned a high court verdict that had set aside a law framed in 1860 and decriminalized consensual sex among adult homosexual men.

At the same time, the apex court put the ball in the government’s court, arguing that it was free to annul the law through legislation. The verdict was pronounced by justice G.S. Singhvi, who retired on Wednesday.

In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.

While the government did not appeal the high court decision, a challenge on the grounds of public morality was filed by groups of religious bodies and individuals, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.

Activists and lawyers who were blindsided by the apex court’s judgement condemned it even as conservative voices welcomed it.

Gay rights activist Ashok Row Kavi described the ruling as an “earth shattering verdict”.

Anjali Gopalan, founder and executive director of Naz Foundation, the non-governmental organization (NGO) that filed a lawsuit in the Delhi high court in 2001, said, “We have been set back by a hundred years. The ruling tells us what we are as a people. The whole process is reflective of the mindsets of those who have passed the judgment. It is bizarre, pathetic and sad.”

The judgement said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”

Justifying its ruling, it said, “The High Court overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years, less than 200 persons have been prosecuted for committing offence under Section 377.”

Noting that despite recommendations for amendment, Parliament has retained the law, the decision says, “This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”

It, however, left the door open for the executive to bring the necessary amendments to the law.

“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 order said.

Experts say any legal recourse will be very difficult. A review of the decision, if sought, is unlikely to reverse it as the matter will then be considered by the same bench—except that another judge will replace Justice Singhvi. A lawyer who represented some of the original petitioners said that even if the matter is heard afresh, the Supreme Court ruling will operate as a precedent, which will weaken the matter from the start.

Anand Grover, lawyer for Naz in the matter, however, sounded defiant. “I am extremely disappointed with the judgement. The Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and transgender persons that they are criminals in the eyes of the law. The movement for LGBT (lesbian, gay, bisexual and transgender) equality is unstoppable, rooted as it is in the dignity and resilience of the LGBT persons. We will be filing a review of the present decision as soon as it is available,” he said.

By this decision, the court has failed to recognize people’s internationally protected right to privacy and non-discrimination, said Meenakshi Ganguly, Human Rights Watch South Asia Director.

While rural development minister Jairam Ramesh said the judgement “doesn’t do justice to a liberal society like ours”, home minister Sushilkumar Shinde said, “We have to abide by the decision”.

Amod Kanth, general secretary of Prayas, an NGO working for children’s welfare, who was one of the petitioners against the Delhi high court verdict, welcomed the apex court’s order.

IPC, drafted by the politician and historian Lord Thomas Macaulay in British India, criminalized homosexuality as per prevalent Victorian values.

However, while Indian statute books continue to criminalize homosexual sex, Britain reformed its law by the Sexual Offences Act 1967 and de-criminalized homosexuality and acts of sodomy between consenting adults—something noted by the high court.

Mrinal Satish, associate professor at the National Law University, Delhi, said, “Section 377 is inspired by the 18th century Victorian morality which believed that procreation is the only purpose of sex. The 20th century thought process is far removed from such retrograde beliefs and ideas.”

In the four years since the high court verdict, the gay community in India, granted equal rights by the law, has become more mainstream. Consequently, activists believe the Supreme Court order turns the clock back.

Mumbai-based journalist Vikram Doctor said, “Many young people who came of age in this period came out quite naturally, without thinking of being in the closet. And it was across classes—many poor LGBT people were the ones who suffered most from prejudice because they didn’t have the safety that money buys. They were the ones really empowered by the Delhi high court decision.”

Meenakshi Lekhi, a Bharatiya Janata Party spokesperson and Supreme Court lawyer, said: “We welcome the decision of the court because it is important that Section 377 remains. It is not only women who can be exploited and harassed but men also get exploited so there is a need for a law to protect men too.

“If there is a law to protect women, how can there not be a law to protect men? What happens between people inside their homes is not being questioned but if there is a victim then the complaint should be addressed. Delhi has seen incidents where homosexuals have been attacked and killed. In 2004, two homosexual men were murdered in Delhi, so this law is needed so men are not harassed,” said Lekhi.

Within hours of the Supreme Court ruling, protesters gathered at Jantar Mantar in central Delhi to demand back the rights of the LGBT community.

A giant rainbow flag, hanging from a neem tree, formed the backdrop at the allotted venue in Delhi’s protest square.

Explaining why he was chanting Humko chahiye azadi (we want freedom), Dipankar Dey, a law intern, said, “I’m here because I’m gay and this ruling affects me. Now if I have sex with my boyfriend, I can be arrested by the police.” Invoking an iconic gay American politician, the young intern said, “It’s time to move beyond activism. We need action. We need a Harvey Milk.”

Standing alone wearing a black bandana, Jasmine, who works in an NGO and chose to give only her first name, said, “I’m one of the allies of the LGBT community and today I’m disappointed and disgusted. But we have come so far, so close to the real freedom, that now we cannot afford to go back.”

Nobody at Jantar Mantar seemed prepared to go back into the closet—though some had their faces covered with scarves to avoid being photographed.

Protesters held up placards with slogans like ‘We are not criminals’ and ‘Nelson Mandela was on our side’.

Journalist Lesley Esteves, one of the pioneers of Delhi’s gay movement, shook her head, saying, ‘This is terrible”.

Watching the protesters, Dev Sanyal, a supporter of the Aam Aadmi Party which held a victory celebration nearby, said, “What these people are demanding is against nature, against religion. We cannot support them.”

Jostling amid a pressing crowd of TV journalists, Raja Bagga, a law researcher said, “Although legal sanction to gay sex is symbolic, it means that you are on the law’s right side, and this is a safeguard against potential harassment. In today’s judgment, the court hasn’t outright rejected our rights but it has asked us to go to the Parliament. Technically the judges might not be faulted, but they did have the power to address minority rights on their own.”

Elizabeth Roche, Gyan Varma, Mayank Austen Soofi, Seema Chowdhry, Nikita Mehta, Sanjukta Sharma and PTI contributed to this story.

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