In a blow to gay rights in India, the Supreme Court Of India(SCI) on
Wednesday Dec 11,2013 overturned a high court verdict that had set aside a law
framed in 1860 and decriminalized consensual sex among adult homosexual
men.
The judgement said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”
Justifying its ruling, it said, “The High Court overlooked that a
miniscule fraction of the country’s population constitute lesbians,
gays, bisexuals or transgenders and in last more than 150 years, less
than 200 persons have been prosecuted for committing offence under
Section 377.”
Noting that despite recommendations for amendment, Parliament has retained the law, the decision says, “This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”
It, however, left the door open for the executive to bring the necessary amendments to the law.
“Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General,” the order said
At the same time, the SCI put the ball in the government’s court, arguing that it was free to annul the law through legislation. The verdict was pronounced by justice G S Singhvi who retired on Wednesday.
In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.
While the UPA Government did not appeal the high court decision, a challenge on the grounds of public morality was filed by groups of religious bodies and individuals, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.
Activists and lawyers who were blindsided by the SCI’s judgement condemned it even as conservative voices welcomed it.
Gay rights activist Ashol Row Kavi described the ruling as an “earth shattering verdict”.
Anjali Gopalan founder and executive director of Naz Foundation, the non-governmental organization (NGO) that filed a lawsuit in the Delhi high court in 2001, said, “We have been set back by a hundred years. The ruling tells us what we are as a people. The whole process is reflective of the mindsets of those who have passed the judgment. It is bizarre, pathetic and sad.”
The judgement said: “We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable.”
Noting that despite recommendations for amendment, Parliament has retained the law, the decision says, “This shows that Parliament, which is undisputedly the representative body of the people of India, has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.”
It, however, left the door open for the executive to bring the necessary amendments to the law.
“Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General,” the order said
At the same time, the SCI put the ball in the government’s court, arguing that it was free to annul the law through legislation. The verdict was pronounced by justice G S Singhvi who retired on Wednesday.
In 2009, the Delhi high court had ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes sex between adult homosexual men, was unconstitutional.
While the UPA Government did not appeal the high court decision, a challenge on the grounds of public morality was filed by groups of religious bodies and individuals, including the All India Muslim Personal Law Board, the Apostolic Churches Alliance and the Utkal Christian Council.
Activists and lawyers who were blindsided by the SCI’s judgement condemned it even as conservative voices welcomed it.
Gay rights activist Ashol Row Kavi described the ruling as an “earth shattering verdict”.
Anjali Gopalan founder and executive director of Naz Foundation, the non-governmental organization (NGO) that filed a lawsuit in the Delhi high court in 2001, said, “We have been set back by a hundred years. The ruling tells us what we are as a people. The whole process is reflective of the mindsets of those who have passed the judgment. It is bizarre, pathetic and sad.”
No comments:
Post a Comment