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[READ 377 JUDGMENT]: Supreme Court bans gay sex again as ‘constitutionally unsustainable’

Rainbow flags will be on half mast today
Rainbow flags will be on half mast today

The Supreme Court has criminalised homosexual intercourse between consenting adults today, reversing the Delhi high court’s 2009 decision to overturn section 377 of the IPC, reported TV channels.

[Download the judgment: PDF (Scribd) / TXT / or scroll down for embedded PDF / or click here for a summary of the 7 creative (legal) reasons the Supreme Court made its decision]

The apex court has shifted the onus onto parliament, arguing that the courts could not make such decisions under the existing laws, reported Firstpost. There was “no constitutional infirmity” in the 377 law, said the court, according to CNN-IBN.

WSJ has a live blog compiling views and reactions, including those of BJP politician Subramanian Swamy, who said in an email statement that homosexuality was a “malady” and malfunction of the human body, for which the government and corporates should find a cure urgently.

Justice GS Singhvi – who will retire today - delivered the judgment on a bench with Sudhansu Jyoti Mukhopadhaya. [Rahul Singh profile of Singhvi in Mint today]

Update 16:19: The government would take up the matter to remove section 377, “if parliament runs”, law minister Kapil Sibal told the PTI. “It is the prerogative of the Supreme Court under the Constitution to test the constitutionality of a law. They are exercising their prerogative. We have the prerogative to make laws. We shall exercise our prerogative.”

Singhvi: Last day in office
Singhvi: Last day in office

The appeal was launched by more than 10 petitioners, including Hindu, Christian and Muslim religious groups and other activists, including the Utkal Christian Council, the Apostolic Churches Alliances, the Delhi Commission for Protection of Child Rights, the Tamil Nadu Muslim Munnetra Kazhagam, the All India Muslim Personal Law Board.

Senior advocate Anand Grover, who represented the Lawyers Collective and the Naz Foundation in winning the original Delhi high court victory, said according to Firspost: “We don't know the precise reasoning... Whether other things have been said is not clear. We are very disappointed, we will take action, this is a huge step back.”

[Read Legally India 2009 interview with Anand Grover about the 377 fight]

[Download 2009’s Delhi HC judgment]

Section 377 was introduced into the 1861 Indian Penal Code by the colonial British regime, criminalising "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment. The law was being used by police to intimidate gay men and made providing health services to the homosexual community more difficult, legally.

Delhi HC justices AP Shah and S Muralidhar had ruled:

We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15. A person below 18 would be presumed not to be able to consent to a sexual act. This clarification will hold till, of course, Parliament chooses to amend the law to effectuate the recommendation of the Law Commission of India in its 172nd Report which, we believe, removes a great deal of confusion.

Also read: 7 creative (legal) reasons the Supreme Court decided not to strike down 377

[Download the judgment here: PDF via Scribd / TXT]

Photo by Vinayak Das

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