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India Supreme Court upholds colonial ban on gay sex

Published time: December 11, 2013 12:18
In this photograph taken on November 25, 2012 members of the lesbian, gay, bisexual, transgender (LGBT) community and supporters attend the 5th Delhi Queer Pride parade in New Delhi. (AFP Photo)

In this photograph taken on November 25, 2012 members of the lesbian, gay, bisexual, transgender (LGBT) community and supporters attend the 5th Delhi Queer Pride parade in New Delhi. (AFP Photo)

The Indian Supreme Court has struck down a 2009 ruling by a lower court to decriminalize homosexual sex and will uphold the ban. India’s gay community was “disappointed” by the ruling and declared it was a “black day” for LGBT rights.

In Wednesday’s hearing the Supreme Court said that the Delhi High Court overreached its authority by ruling against the ban in 2009. The Delhi High Court moved to abolish Section 377 of the Indian Penal Code, which classifies anal sex as “carnal intercourse against the order of nature,” in 2009.

"It is for the legislature to look into desirability of deleting Section 377 of the Indian Penal Code," the Supreme Court said on Wednesday.

Section 377 was introduced into the Indian legal system during British colonial rule in 1861.

Those found breaking the law banning homosexual intercourse can be punished by a fine and a maximum jail sentence of 10 years.

Before making the decision, justices G S Singhvi and S J Mukhopadhaya heard the appeals of representatives of various LGBT organizations as well as those of religious groups who decried the previous High Court ruling as against the cultural and religious values of the country.

LGBT activists who were in attendance at the hearing visibly broke down when the ruling was pronounced and said the verdict had “taken away their right to life,” reported the India Times.

"Such a decision was totally unexpected from the top court. It is a black day,"
Arvind Narrain, a lawyer for the Alternative Law Forum gay rights group, told reporters.

“In our understanding, the Supreme Court has always sided with those who have no rights,” said Narrain.

In addition, Amnesty International India made a plea to the Indian parliament to take immediate steps to decriminalize consensual sex between adults of the same sex. LGBT activists have pledged to appeal the Supreme Court’s ruling. However it is unlikely the government will approve decriminalization ahead of general elections in May for fear of losing conservative voters.

Activists of the National Akali Dal shout slogans during a protest in New Delhi (Reuters/Adnan Abidi)

Religious groups, however, have hailed the ruling as in keeping with India’s cultural and religious heritage.

"All the major communities of the country - the Hindus, the Christians and the Muslims - had appealed against the ruling of the Delhi High Court," a lawyer for a Muslim charity told reporters. "They had said that this unnatural sex is not permissible in all the religions of the world."

One of the main arguments by LGBT supporters against the criminalization of gay sex was that the initial ban was a product of British colonialism and Indian society was more tolerant towards homosexuality.

Attorney General G E Vahanwati argued that the law was introduced into the Indian Penal Code under the influence of “Victorian morality and values.”

“It would appear that the introduction of Section 377 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 colonizers,” the attorney said in a 2012 hearing.

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