Gay Sex Punishable in India

What did the Supreme Court rule on December 11, 2013?

Gay rights activists were up in arms on Wednesday against the Supreme Court verdict that upheld a law criminalizing homosexuality — calling it a "black day" for the LGBT community, and vowing to carry on the fight to restore their rights, including seeking a review.

As members of the lesbian, gay, bisexual, and transgender (LGBT) community expressed shock and disappointment at the verdict, Additional Solicitor General Indira Jaising threw her weight behind them, saying the court's position was an imposition of "medieval mindset" on the people of the country.

What did the critics of the verdict say?

She questioned the "double standards" of the apex court in dealing with human rights issues after it quashed a 2009 Delhi High Court verdict and made gay sex illegal and a punishable offence again under Section 377 of the IPC.

She asked why the court put the ball in the court of the legislature to decide on the issue when so many other matters and policies are reviewed by it.

"Historical opportunity to expand constitutional values has been lost," Jaising said, adding: "It is surprising that the court, which does judicial review on many issues, has put the ball in the court of Parliament to decide on homosexuality."

"What surprises me is the double standards here. When it is a question of human rights, why send it to the Parliament when the Supreme Court is itself the observer of the human rights," she commented after the verdict.

Anjali Gopalan, founder of the NGO Naz Foundation that was the first to file the petition for decriminalizing Section 377, said she was "shocked" by the ruling.

"This is taking many, many steps back. The Supreme Court has not just let down the LGBT community but the Constitution of India."

"The verdict was totally unexpected from the top court. It is a black day for the community," Arvind Narrain, a lawyer of the Alternative Law Forum gay rights group, told reporters.

Gay rights activists who were inside the courtroom were visibly upset, while some outside broke down and hugged each other in consolation.

What happened next?

Advocate Anand Grover, who had argued the case, said Naz Foundation would file a petition for a review of the top court's decision.

The government said it would have to abide by the verdict. "We have to abide by the decision," Home Minister Sushilkumar Shinde said. "The opinion of the Supreme Court has to be respected by the government," Law and Justice Minister Kapil Sibal said.

The judgment was, however, welcomed by Amod Kanth, general secretary of Prayas, who was one of the petitioners against the Delhi High Court verdict.

Was the verdict ever reversed?

Yes. The fight continued, and in September 2018, a five-judge bench of the Supreme Court ruled in Navtej Singh Johar v. Union of India that Section 377 was unconstitutional insofar as it criminalized consensual homosexual sex between adults — decriminalizing homosexuality in India. The 2013 verdict was overruled.

Source: Times of India

Editor's note: name spellings corrected (Indira Jaising, Arvind Narrain) from the original article.