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Homosexual rights groups deplored the Supreme Court judgment on Wednesday which upheld Section 377 of the Indian Penal Code, overturning an earlier decision of the high court (HC) here which had struck it down as unconstitutional.
The said section dates back to British rule. It declares sexual activity "against the order of nature” to be a crime.
Specifically: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.''
In 2009, the HC in Delhi had said same-sex intercourse among consenting adults could not be a crime and a law which said otherwise could not be legal. Criminalising of consensual sexual acts between adults, said the HC, breached the Constitutional provisions on equality and liberty.
However, the SC said the section did not suffer any Constitutional infirmity and it was for the legislature, not the judiciary, to change it. Till then, it was valid.
Rights groups said the SC had snatched away a hard-fought victory for liberty and equality. Gautam Bhan of Voices Against Section 377, one of the petitioners pleading in favour of the HC judgment, said: “The Supreme Court cannot break people. If equality is denied to one, then it is denied to others, too. There cannot be any equality in the country if even one group is discriminated against for their sexual orientation.”
He dismissed the stand taken by the court that the latter's job was to interpret the constitution and not to make new laws. “If this court can’t give us any rights, it can’t take away what has been given to us by the HC,” he declared.
Kavita Krishnan, another activist, said the section was redundant, as the minors it might seek to protect from sexual assault were already protected by the Prevention of Sexual Offences Against Children Act.
Purushottaman Mulloli of the Joint Action Council, Kannur, petitioner in the original case and who personally argued his case in the SC, said both the media and non-government bodies were distorting facts about the judgment and the law.
“Where is the mention of any particular sexual orientation in Section 377? The gay rights groups could not provide any evidence that the section had criminalised homosexuality. And, HIV/AIDS prevention groups had nothing to prove that the Section was hampering health care. That is why their appeals were rejected,” he said.
Said the SC: “No class was targeted by the section and no classification has been made in it...Hence, the finding of the HC that this law offended Article 14 (of the Constitution) as it targets a particular community known as homosexual or gay is without any basis.”
And, “mere possibility of abuse of any particular provision cannot be a ground for declaring a law unconstitutional”.
Earlier talking to the media, Indira Jaising, the Union attorney general, said the SC had merely interpreted the Constitution. Law Minister Kapil Sibal said the court verdict was supreme and the Parliament could consider changes only through fresh legislation.
In fact the court itself in the judgement says that if the Section needs to be changed it was for Parliament to do it, meaning that the High Court could not read down the Section and interpret it as criminalising homosexuals.
