SC says gay sex a crime, activists dejected

New Delhi, Dec 11  The Supreme Court Wednesday held consensual sex between adults of the same gender a criminal offence, leaving the lesbian, gay, bisexual and transgender community dejected. But they vowed to fight on.

Setting aside a Delhi High Court verdict of 2009 that decriminalised sexual relations between people of the same sex, Justice G.S. Singhvi and Justice S.J. Mukhopadhayay said there was no constitutional room for a change in section 377 of the Indian Penal Code.

The section holds that same-gender sexual relationship is against the order of nature and an offence entailing imprisonment up to life sentence.

The apex court Wednesday upheld the constitutional validity of section 377. But it said the government was free to amend the law.

Law Minister Kapil Sibal said: “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, we shall exercise ours.”

The ruling came as a major blow for gay rights activists, who pledged to fight for their rights. Many of the activists who were in the court broke down.

Activist Ashok Row Kavi said with this verdict, “we are back to square one”.

“We will fight for our rights. It is essential to note that this has nothing to do with morality and religion.

“We are only asking for inclusive rights in the society. This is just a type of orientation a lot of people are involved in,” he added.

The apex court verdict upholding section 377 came 21 months after it had reserved its verdict in March 2012.

It allowed the appeals filed by social and religious groups challenging the high court verdict on the ground that gay sex was against the cultural and religious values of the country.

Rajya Sabha MP and Janata Dal-United’s Shivanand Tiwari described the ruling as “regressive”.

“The judgment is regressive. The court should reconsider its verdict. It (homosexulaity) has been in existence since time immemorial. Not accepting it is ignorance. It has been accepted in many other countries and gay marriages have been allowed,” he said.

Leslie Esteven, another gay activist, said: “We are asking for our rights given by the constitution under article 21. We will continue to fight for our rights. They do not understand our simple demand.”

Activist Sohini Ghosh called the judgment “not just a betrayal of the LGBT community but of the values enshrined in the constitution.

“Our fight will go on. We will fight till the bitter end,” she said.

Pallav Patankar from Humsafar Trust said the verdict was a big blow to the community.

“The Supreme Court has put the decision back to parliament. The reason it went to the SC was because parliament refused to discuss issues related to alternate sexuality. There is a need to address the issue,” he said.

The government had earlier told the apex court that there were an estimated 2.5 million gays in India and about seven percent of them were HIV infected.

In its affidavit, the union health ministry said it was planning to bring 400,000 high-risk men who have sex with men under its AIDS control programme — and that half of them had already been covered.