SC verdict on decriminalising homosexuality today: The case so far

The Supreme Court will today pronounce its verdict on petitions challenging Delhi High court judgment decriminalise homosexual acts among consenting adults in private.

A bench of justice GS Singhvi and justice SJ Mukhopadhaya will deliver the verdict on a bunch of petitions of anti-gay right activists, social and religious organisations against the high court's 2009 verdict decriminalising homosexual acts.

Incidentally, the judgement will be pronounced by justice Singhvi on the day he retires.

The bench had reserved its order in March 2012 after granting day-to-day hearing of the case from 15 February, 2012.

Representational image. AFP

Representational image. AFP

The Delhi high court had on 2 July, 2009, decriminalised homosexual intercourse as provided in section 377 of the Indian Penal Code (IPC) and ruled that such sex between two consenting adults in private would not be an offence.

Section 377 (unnatural offences) of the IPC makes homosexual acts a criminal offence, entailing punishment up to life term.

Decriminalising homosexuality among consenting adults in private the High Court had said,"We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act."

The verdict was challenged by one Suresh Kumar Koushal, an astrologer, followed by other private individuals and several other bodies representing religious groups like the All India Muslim Personal Law Board.

Among those who have fought for the Delhi High court verdict to be upheld are the Naz Foundation, filmmaker Shyam Benegal and other groups.

What those challenging the Delhi High Court verdict said:

The legal counsel for astrologer Suresh Koushal argued that the verdict would lead to a rise in gay parlours and prostitution.

The All Indian Muslim Personal Law Board said that gay sex was against the principle of nature and would lead to sexual corruption and could also lead to the spread of ailments like cancer and AIDS.

What the government said

The Centre had courted controversy in the case and had irked the Supreme Court by changing its stance on the issue.

Arguing for the Union government, additional solicitor general PP Malhotra said that gay sex was "highly immoral and against the social order," and also said that it was "against nature and spreads HIV."

He argued that Indian laws reflected the view of society and also said that the Indian laws could not be guided by laws of foreign countries.

However, the Centre went into damage control mode after an outcry with the government saying that Malhotra's statements did not reflect the government's stance.

Additional Solicitor-General Mohan Jain, who represented the the Health Ministry, told the court that the Centre had decided not to challenge the 2009 High Court judgment de-criminalising homosexuality. The argument however, irked the court which questioned how the Centre could change its stance.

The court had also criticised the Centre for what it said was a 'casual' approach to the case for failing to provide adequate information to the court.

However, in his arguments before the court Attorney general Goolam Vahanvati said that the Centre was not opposed to the Delhi High court's verdict in any manner.

"It would appear that the introduction of Section 377 (making homosexual acts an offence) in India was not a reflection of existing Indian values and traditions. Rather, it was imposed upon Indian society due to the moral views of the colonisers," Attorney General ( AG) GE Vahanvati submitted.

What the respondents argued

Counsel for filmmaker Shyam Benegal argued that the effect Section 377 was so wide that it would even include heterosexual sex as well.

The Naz Foundation which works among homosexual men argued that the law was violative of hte right to privacy and sexual expression.

NGO Lawyers Collective has also put together the the final arguments in the case which you can read here.


Published Date: Dec 11, 2013 08:15 am | Updated Date: Dec 11, 2013 08:26 am


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