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SC Calls Gay Sex Illegal, Upholds Sec 377

PUBLISHED BY: SURENDER KUMAR
DECEMBER 11, 2013

   
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 SC Calls Gay Sex Illegal, Upholds Sec 377

The Supreme Court has set aside the Delhi High Court ruling  which had de-criminalized homosexuality by striking down Section 377 of the IPC. While setting aside the High Court order, the apex apex court has observed that Section 377 is a valid provision and that it does not suffer from constitutional infirmity. However, appropriate changes in Section 377 can be made through legislation, says the apex court order

On the appeals filed by various organisations challenging the High Court verdict on the ground that gay sex is against the Indian cultural values, the bench has said that the Parliament can delete section 377 of IPC but till the time it is there, the court cannot legalise gay sex. The apex court had pulled up the Centre for its "casual" approach on the issue and also expressed concern over Parliament not discussing such important matters and blaming the judiciary for its "over-reach". While asking for for decriminalisation of gay sex, the Centre had subsequently submitted that the Indian anti-gay law was a hangover of British colonialism and that the Indian society was much more tolerant of homosexuality.

 

It is a huge setback for the LGBT (lesbian, gay, bisexual and transgender) community, which had turned to the court for its directions earlier. Religious groups like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance too had challenged the judgment. Yoga guru Ramdev's disciple SK Tijarawala, Ram Murti, Bhim Singh, B Krishna Bhat had also opposed the earlier verdict. Just four years back, thousands of gay community members had celebrated as Delhi High Court gave its order on legalising homosexuality. The Delhi High Court had, in 2009, de-criminalized gay sex as provided in Section 377 of the IPC by ruling that sex between two consenting adults in private would not be an offence.

The legal debate on gay rights goes back to 2004 when a petition in the Delhi High Court was filed by Naz Foundation. It had challenged Section 377 that criminalised gay sex between consenting adults. Same-gender sex has been illegal in India since the 1860s, when a British law had called it 'against the order of nature'. While delivering the judgement, the court had declared Section 377 violative of Articles 21 [Right to Life and Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth. Further, sexual orientation is a ground parallel to sex, and discrimination on this ground is not permitted under Article 15.

 


IPC SECTION 377

 

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

List of countries where gay sex is legal

Netherlands - Legal since 2001 (First country to legalise same-sex marriage)

Belgium - Legal since 2003

Spain - Legal since 2005

Canada - Legal since 2005

South Africa - Legal since 2006

Norway - Legal since 2009

Sweden - Legal since 2009

Portugal - Legal since 2010

Iceland - Legal since 2010

Mexico - Legal in Mexico City since 2010

Caribbean Netherlands - Legal since 2012

Denmark - Legal since 2012

New Zealand - Legal since 2013

France - Legal since 2013

Brazil - Legal since 2013

 

 

 



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