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| Supreme Court says gay sex |
| Supreme Court says gay sex is a criminal offence, activists to seek review
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| INDIA
, 11-December-2013
3:53:30 AM |
| The Supreme Court today said gay sex remains a criminal offence, leaving the largely-closeted homosexual community in India looking to legislation by Parliament as their last big hope.
The top court said the 2009 Delhi High court order decriminalising homosexuality is constitutionally unsustainable as only the government can change a law.
Outside the court, scores of gay rights activists and members of the community burst into tears. Gay rights NGO Naz foundation said it would challenge the verdict.
The court's order means gay sex between consenting adults stays a criminal offence under Section 377, a 19th century law banning "carnal intercourse against the order of nature". Petitions had challenged the high court's order striking down this law.
The Supreme Court said there is "no constitutional infirmity" in the law, which left critics wondering about the lack of judicial activism to defend rights.
"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," said additional Solicitor General Indira Jaising. "People expect the highest court of the land to protect their rights."
The order is "a step backwards towards barbarism and medievalism," tweeted noted historian Ramachandra Guha.
Gay activists allege that the police uses the law, which carries a punishement of up to 10 years in jail, to harass members of their community.
Though the court leaves it to the government to act, numerous flip-flops by the Centre has not encouraged activists. The election across largely conservative India in five months is also likely to weigh on the ruling Congress.
Law Minister Kapil Sibal said, "It's the Supreme Court's prerogative to test the constitutionality of our laws, it is our prerogative to make laws. On the validity of the law, the government must respect the court."
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