Section 377 which terms same-sex a criminal offence is often used to
harass the gay community—in the process making them vulnerable to
HIV/AIDS
The Supreme Court on Wednesday declared gay sex illegal and said that
Section 377 of Indian Penal Code (IPC), which terms same-sex
relationship as an offence, is a valid constitutional provision.
Overruling the 2009 Delhi High Court judgement which decriminalised gay
sex, the Supreme Court suggested that appropriate changes can be made to
section 377 by Parliament.
The bench of justices G S Singhvi and S J Mukhopadhaya gave its
verdict on a few pending petitions that challenged the high court
verdict on the LGBT (lesbian, gay, bisexual and transgender) community.
Section 377 and its link to HIV
Violation of Section 377 of IPC is punishable with imprisonment for
10 years (or even for life). The section is often used to harass the gay
community—in the process making them vulnerable to HIV/AIDS. The health
ministry's National AIDS Control Organisation (NACO) has been against
the penal provision because it says that Section 377 creates obstacles
in carrying out AIDS awareness programmes among homosexuals (
http://www.downtoearth.org.in/node/4705).
High Court decriminalised homesexuality
In 2009, the Delhi High Court had upheld the stand taken by
non-profits Lawyers Collective and Naz Foundation, which in its petition
had challenged the constitutional validity of Section 377 on the ground
that it violated the right to privacy, dignity and health, right to
equality and non-discrimination, and the right to freedom of expression.
Opposing the high court decision, various religious groups had
approached the apex court which reserved its order in March last year
after a few hearings.
Civil society says verdict regressive
The civil society has termed the Supreme Court's decision shocking
and is planning to oppose it at various levels. N Sarojini from a
Delhi-based non-profit Sama: Resource Group for Women and Health has
called the decision a shocking verdict.
They are going to organise a protest at Jantar Mantar in the evening.
“The ruling by India’s Supreme Court making consensual same-sex conduct
between adults a criminal offence marks a black day for freedom in
India,” said human rights group Amnesty International India in a press
statement. G Ananthapadmanabhan, chief executive at Amnesty
International India said, “This decision is a body blow to people’s
rights to equality, privacy and dignity. It is hard not to feel let down
by this judgment, which has taken India back several years in its
commitment to protect basic rights," he said.
Anand Grover, director of Lawyers Collective, the body which
represented Naz Foundation before both Delhi High Court and Supreme
Court, noted “I am extremely disappointed with the judgement. The
Supreme Court has taken 21 months to tell the lesbian, gay, bisexual and
transgender persons that they are criminals in the eyes of the law. The
movement for LGBT equality is unstoppable, rooted as it is in the
dignity and resilience of LGBT persons. We will be filing a review of
the present decision as soon as it is available.”
What happened in 2008
When the Delhi High Court was hearing the petition by Naz Foundation
in 2008, it brought forth the rift between two Union ministries on
section 377. The ministry of health and family welfare wanted changes in
the section, while the home ministry contended that only victims can
demand a change in laws—not a third party.
