Court reinstates a colonial-era ban on gay sex that could see homosexuals jailed for up to ten years
Homosexuality is a crime once again. In a landmark judgement, the Supreme Court on Wednesday set aside the 2009 judgement of the Delhi High Court that had decriminalized homosexuality in India.
Section 377 of the Indian Penal Code was constitutionally valid, said the Apex Court, brushing aside the high court decision. But if the government so wished, it could debate the issue and remake or remove the law.
At face value, this is a blow to human rights and the liberal tradition of India where the LGBT (Lesbian, Gay, Bisexual and Transgender) community feels otherwise safe and free. The silver lining is that the verdict could lead to constructive parliamentary debate where Parliament is forced to come to an honest conclusion regarding the law, repealing it on its own, instead of pretending that the courts had forced the decriminalization of homosexuality on an unwilling nation.
A bench of justices GS Singhvi and S.J. Mukhopadhyaya has upheld the constitutional validity of Section 377 that makes ‘unnatural’ sex a punishable offence. The bench stated “that Section 377 does not suffer from the vice of unconstitutionality and the declaration made by the division bench of the Delhi High Court is legally unsustainable.” However, the Court suggested that the legislature was free to “consi-der the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same.”
In a historic judgement in July 2009, Chief Justice A.P. Shah and Justice S. Murlidhar had ruled that criminalising consensual sex between homosexual adults violates their fundamental rights guaranteed in the Constitution.
This decriminalising of homosexuality was long awaited, most countries (including China and Nepal, among immediate neighbours) had done so years ago. The United Progressive Alliance government had not snatched this opportunity to build on this progressive line of thought and amend the law, as it had earlier suggested. In fact it had been engrossed in a curious battle with itself, with the home ministry opposing the health ministry’s attempt to decriminalise homosexuality.
And now, the SC’s re-criminalising homosexuality is a setback. After four and a half years of India’s living as a twenty-first century tolerant democracy that did not discriminate on the basis of sexual preference, the country has suddenly gone back to putting a 150-year-old British law above the immediate needs of today’s citizens.
Now the next government, whether progressive or illiberal, would have to deal with this issue, and decisively balance the country’s religious and cultural sentiments with its humanitarian and health needs. To take a crude example, criminalising homosexuality drives gays underground and makes it near impossible for the government to successfully carry out its HIV/AIDS programmes that hope to target about 4,00,000 ‘high risk’ gay men in India. More importantly, criminalizing consensual sex between adults drives the country back into the dark ages. But the gay movement and sexual politics has come of age in India, and this verdict cannot restrain that for long.
Antara Dev Sen