Supreme Court sets aside Delhi HC verdict decriminalizing gay sex

• In a major setback to gay rights activists, the Supreme Court has held that homosexuality or unnatural sex between two consenting adults under Section 377 of the Indian Penal Code (IPC) is illegal and will continue to be an offence.

What does Section 377 say?

• Whoever voluntarily has “carnal intercourse against the order of nature with any man, woman or animal commits an unnatural offence” and can be punished with up to life term.
• However, ‘Section 377, which holds same-sex relations unnatural, does not suffer from unconstitutionality’.

• The Delhi High Court in 2009 had ruled that Section 377 was against constitutional values and human dignity, which clearly violates the Human Right’s of an individual.
• But the SC has argued that, the Delhi HC has relied extensively upon the judgements of other foreign countries which cannot be applied blindfolded for deciding the constitutionality of Indian law.
• And since LGBT (lesbians, gays, bisexuals and transgenders) community constitute only a diminutive fraction of the population, the decision does not hold water. Now, it is upto the parliament to consider the desirability and propriety of deleting section 377 of IPC from the constitution or amend it.

 Ruling regressive, say gay rights activists

• The Naz Foundation has said that, the decision has let down the constitutional vision of an equal and inclusive society and violated the fundamental tenets of the Constitution.
• The 2.5-million LGBT community is categorised as a high-risk group by the Department of AIDS Control, as prevalence of HIV infection among them is close to 7 % as against less than 1% in others. India has cut down HIV infections by 57% through its inclusive public health schemes. With this decision HIV infected among LGBT community may no longer access public health facilities without risking harassment or arrest.
• The community would also face threats and intimidation or even blackmailing.

 A retrograde decision:

• The Supreme Court’s is viewed as ‘retrograde’ as it has brought back medieval prejudice and has also curtailed liberal values and human rights.
• Through its path-breaking judgment in Naz Foundation, the Delhi High Court had amended Section 377 to decriminalise consensual sex among adults irrespective of gender. The Union government too was in favour of the High Court’s view, and had left it to the Supreme Court (SC) to decide on the penal provision.
• The court has stepped in wherever the executive had failed and has not hesitated to read into the constitutionally enumerated fundamental rights to life and to equality an expansive set of human rights including the right to education, the right to work with dignity and the right of prisoners to humane treatment. That is all the more reason why it should not shy away from correcting a centuries-old law and an outdated mind-set that offend against basic rights and human dignity.
• Changes in law have come about both by legislation and through the judiciary’s constitutional interpretation.
• With this decision, the judicial route to bringing the law in line with fundamental human right has been closed. It is strange that a decision involving a major constitutional issue and the hard-won rights of large sections of the socially oppressed should have been decided by a two-member bench rather than by a larger Constitutional Bench.
• It is Parliament’s prerogative to amend Section 377 in tune with the social circumstances, declared the court in a show of restraint that is uncharacteristic of its attitude in recent times. However, the legislative route to decriminalising gay sex would seem to be problematic in this election season because the issue may not be accorded priority and also because it may be difficult to forge a political agreement.
• If harassment by law enforcement agencies drives sections of the LGBT community underground and makes them terrified of disclosing their orientation, it would have serious public health consequences as well, particularly in the fight against AIDS. Above all, it is a test of humane values, fairness and dignity in a society. It is important that institutions of the state acknowledge the importance of these values.