Indian Supreme Court Criminalizes Homosexual Acts
Via the Times of India: Supreme Court makes homosexuality a crime again
The Supreme Court on Wednesday dealt a cruel blow to lakhs of homosexuals, many of whom had started living together after the Delhi high court decriminalized same-sex relationships four years ago, by making it a crime again, even if it is consensual and done between adults in private. The ‘crime’ will attract a maximum punishment of life imprisonment.
The bench of Justices Singhvi and S J Mukhopadhaya reversed the Delhi HC’s 2009 verdict and held that the 150-year-old Section 377, criminalizing gay sex, "does not suffer from the vice of unconstitutionality".
The bench said: "In the light of plain meaning and legislative history of the section, we hold that Section 377 IPC would apply irrespective of age and consent." It added that the section does not discriminate any group with a particular sexual preference, a stand that was diametrically opposite to that by the Delhi HC.
"It is relevant to mention here that Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts, which if committed, would constitute an offence. Such prohibition regulates sexual conduct regardless of gender identity and orientation,"Justices Singhvi said.
The specifics of the law in question:
The court said though the Law Commission of Indian in its 172nd report recommended deletion of Section 377 and that the Centre has chosen not to challenge the Delhi HC verdict, "Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision." Parliament has not amended the law either, it added.
Section 377 of the Indian Penal Code, enacted by British 153 years ago in 1860, terms consensual anal sex an "unnatural offence" and provides punishment equivalent to that for the offence of rape under Section 376. It even outlaws oral sex between man and woman, while holding that only penile-vaginal sex was not "against the order of nature".
It says: "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." It also explains that "penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
Section 377 had been declared discriminatory in a 2009 ruling by the Delhi high court. The ruling this week reverses that lower court position.
The ball is now in the government’s court (via the BBC, India government mulls legalising gay sex):
The Indian government is considering decriminalising homosexuality, a day after the country’s top court upheld a law which criminalised gay sex.
Law Minister Kapil Sibal said "all options were being considered to restore a 2009 Delhi High Court order" which had decriminalised gay sex.
Earlier, Finance Minister P Chidambaram said the ruling had taken India "back to 1860".