Homosexuality: SC says law not amended despite debate, puts ball in Parliament`s court

With the Supreme Court setting aside the judgement of Delhi High Court decriminalising gay sex among consenting adults in private, all eyes are on the elected representatives as to how will they react considering their slow approach to issues.

Updated: Dec 12, 2013, 11:02 AM IST

Zee Media Bureau

New Delhi: With the Supreme Court setting aside the judgement of Delhi High Court decriminalising gay sex among consenting adults in private, all eyes are on the elected representatives as to how will they react considering their slow approach to issues.

The apex court threw the ball into Parliament`s court yesterday to consider the "desirability and propriety" of deleting or amending the penal provision making sexual intercourse between people of same sex as a criminal offence attracting punishment up to life imprisonment.

The judgement of the two-judge bench headed by Justice GS Singhvi on Wednesday revived the penal provision making gay sex an offence punishable with life imprisonment in a setback to people fighting a battle for recognition of their sexual preferences.

Setting aside the Delhi High Court verdict of 2009, the apex court bench of Justice Singhvi and Justice SJ Mukhopadhayay 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."

Pronouncing the judgment, Justice Singhvi said: "We would like to make it clear that this court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity."

"Notwithstanding this verdict", the court said "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 bench, however, put the ball in the court of Parliament to decide on "the desirability" and "propriety" of doing away with the penal provision.

The court cited the non-repealing of the penal provision by Parliament during the amendments in the IPC undertaken after the December 16 gang-rape case.

"After the adoption of the IPC in 1950, around 30 amendments have been made to the statute, the most recent being in 2013 which specifically deals with sexual offences, a category to which Section 377 IPC belongs.

"The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate. However, the Legislature has chosen not to amend the law or revisit it.

"This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision," it said.

Govt hints at legislative route

Reacting to the SC order, Information and Broadcasting Minister Manish Tewari said that Government has already taken a stand that homosexuality needs to be decriminalised, but however, will look into it after studying the judgement.

Law Minister Kapil Sibal said it the Supreme Court`s prerogative to test the constitutionality of the law and their verdict on homosexuality as an offence must be respected by the government.

"It is the prerogative of the Supreme Court to judge the constitutionality and validity of the law. The opinion of the Supreme Court must be respected by the government. They have exercised their prerogative now, we shall exercise ours," Kapil Sibal told reporters outside Parliament.

Congress leader Mani Shankar Aiyar said that appropriate steps must be taken to ensure individuals are treated equally, including those having same sex preferences.

Satisfied with the SC order, yoga guru Baba Ramdev said that the top court has respected sentiments of millions of Indians and declared homosexuality a crime.

Activists dejected

Unhappy with the apex court verdict, NGO Naz foundation said it will seek review of the SC order verdict on homosexuality. "We are disappointed with the judgement. We think the judgement is not correct in law. We will take appropriate legal recourse," senior advocate Anand Grover, who argued the case for the NGO Naz Foundation, said.

As the SC pronounced as criminal offence the consensual sex between adults of the same gender, LGBT community said they were dejected, but determined to continue their fight.

Expressing disappointment and shock, gay activist Ashok Row Kavi said: "With this verdict, we are back to square one. But we will fight for our rights. It is essential to note that this has nothing to do with morality and religion."

"We are just asking for inclusive rights in the society. This is just a type of orientation a lot of people are involved in. We are not doing anything on the roads," he added.

Labelling the judgment a betrayal to the LGBT community, activist Sohini Ghosh said: "I see the judgment today (Wednesday) not just as a betrayal to the LGBT community, but a betrayal to the values that are enshrined in the constitution."