India's top court upholds law criminalising gay sex

India's Supreme Court cancels a 2009 ruling that stated Article 377 infringes on fundamental rights of citizens.

NEW DELHI: India's Supreme Court on Wednesday upheld a colonial-era law criminalising homosexuality in a landmark judgment that crushes activists' hopes for guarantees on sexual freedom in the world's biggest democracy.

A two-judge bench cancelled a Delhi High Court ruling in 2009 that section 377 of the Indian penal code prohibiting people from engaging in "carnal acts against the order of nature" infringed the fundamental rights of Indians.

"It is up to parliament to legislate on this issue," Judge G.S. Singhvi, the head of the two-man bench, said in the ruling which found the ban to be constitutionally valid.

The Delhi High Court decision was strongly opposed by religious groups, particularly leaders of India's Muslim and Christian communities, who appealed to the Supreme Court.

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

"We are very angry about this regressive decision of the court."
Protests were expected later Wednesday from the gay community that is still largely closeted but was emboldened by the 2009 ruling.
Though prosecutions under section 377 are rare, conviction carries a fine and a maximum 10-year jail sentence and it is used by police to harass gay couples, activists say.

"We will explore all options, probably look into the option of a review petition," T. Tandon, a lawyer appearing for Naz Foundation, a non-profit group that works with HIV-AIDS patients, said outside the court house.

"The movement of gay rights is so much stronger now. It is not 2001, it is 2013. You can't have a decision like this."

Dominic Emmanuel, spokesman of the Delhi Catholic Archdiocese, said before the verdict that the church was ready to accept any decision from the Supreme Court.

"Though we did not welcome the decision of the High Court, we did not object to it. If there is a decision like that from the Supreme Court, we will not object to it either," he told the NDTV network.

"The church has a very clear stand on people with different sexual orientations. Though they are different from ... normal people, they should be respected, accepted and there should ne no signs of discrimination against them."

Gay sex has long been a taboo subject in conservative India, where homophobic tendencies abound and many still regard homosexuality as a mental illness.

In recent years, however, the country's gay community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai which have created awareness and encouraged many to come out of the closet.

Jeffrey O'Malley, director of the United Nations Development Programme on HIV/AIDS, had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS.
India has an estimated 2.5 million people living with the virus.