India's Supreme Court Reinstates Gay Sex Ban

, The Asian Lawyer

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A two-judge bench of the Supreme Court of India on Wednesday decided to reinstate a colonial-era law criminalizing gay sex in the country.

The 98-page judgment overturned a 2009 lower court decision which ruled that Section 377 of the Indian Penal Code was unconstitutional to impose a 10-year to life sentence for “carnal intercourse against the order of nature with man, woman or animal.”

Justice G.S. Singhvi and Justice Sudhansu Jyoti Mukhopadhaya held that it is up to the parliament to change the law and that Section 377 does not “suffer from the vice of unconstitutionality” and called the High Court ruling “legally unsustainable.”

The archaic law was made during the British colonial era in 1860 and according to the NAZ Foundation, a non-governmental gay rights organization that challenged the law, has a Judeo-Christian bias that no longer enjoys justification in contemporary Indian society. NAZ claimed that the law has been used to legitimize discrimination against sexual minorities and is a violation of people’s constitutional rights.

In July 2009, Justice A. P. Shah and Justice S. Muralidhar of Delhi High Court sided with NAZ declaring that Section 377’s criminalization of consensual sexual acts of adults in private, was a violation of Articles 21 protection of life and personal liberty, Article 14 equality of law and Article 15 prohibition of discrimination on grounds of religion, race, caste, sex or place of birth, of the Constitution.

Anjali Gopalan, founder of NAZ said in an interview with The New York Times that she was shocked by the decision and said the Supreme Court had let down the Constitution of India.

NAZ was represented by senior advocate Anand Grover who claimed that the expression “carnal intercourse against the order of nature” in Section 377 indicates a specific reference to lifestyle of male homosexuals. “Though facially neutral, these acts are identified and perceived by the broader society to be indulged in by homosexual men,” said Grover.

Senior advocate Amrendra Sharan, lead counsel for the appellants include Delhi Commission for Protection of Child Rights, Apostolic Churches Alliance, All India Muslim Personal Law Board, among others, argued that Section 377 was gender neutral and covers voluntary acts of carnal intercourse against the order of nature irrespective of the gender of the persons committing the act.

The judges of the Supreme Court said in the decision that NAZ has “failed miserably” to provide specific data to support the claim of Section 377 becoming a source of discrimination against gay people. “[NAZ] attacked Section 377 on the ground that the same has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community. In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section,” noted the judges.

The decision also sided with the appellant counsel that Section 377 does not target male homosexual population specifically. “Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the latter category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.”

The judges went on noting that High Court overlooked that fact that only a fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders and in last more than 150 years less than 200 persons have been prosecuted for committing offence under Section 377. “This cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution,” said the judges.

In a submission to the Supreme Court, Additional Solicitor General P.P. Malhotra, who acted for the Ministry of Home Affairs, said that fact that after 60 years, parliament had not decided to delete or amend Section 377 represented people’s will not to do so. “It is not for the Court to import the extra-ordinary moral values and thrust the same upon the society,” he noted criticizing Delhi High Court’s ruling.

In dealing with the judicial review of legislations, the Supreme Court judges agreed that declaring a law unconstitutional is one of the last resorts Courts should take. “The Courts would accept an interpretation, which would be in favor of constitutionality rather than the one which would render the law unconstitutional,” the decision read.

However at the end of the decision, the judges noted that their ruling was a mere correction of the view taken by the Delhi High Court but lawmakers should feel free to re-consider the “desirability and propriety of deleting Section 377 from the statute book or amend the same as per the suggestion made by the Attorney General.”

Email: azhang@alm.com.

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