NEW DELHI — In a major setback to India’s homosexual community, the country’s Supreme Court has upheld a 19th century law which criminalizes gay sex. The top court’s ruling came in response to mostly religious groups which had challenged a 2009 judgment legalizing homosexuality.
A two-judge bench of the Supreme Court ruled Wednesday that a law which bans sex “against the order of nature” is constitutionally valid. It said only parliament could change the law.
The top court’s ruling has overturned a 2009 landmark judgment in which the Delhi High Court had legalized gay sex saying that a ban on it between consenting adults infringed on fundamental rights.
Wednesday’s judgment sent shockwaves through the gay community, which denounced it as regressive.
Gay rights activists who led the legal battle to decriminalize homosexuality vowed to explore all channels to take their battle forward, saying the fight is not over. Many said they had been let down by the top court.
Shaleen Rakesh, a gay man, has been closely involved with the legal fight for gay rights. He says a single judgment has reversed the hopeful journey of recent years and echoed what many gays are saying across the country.
“I am shocked to be living in a country which wants me to go back into the closet. I am not going to go back into the closet,” he said.
Anjali Gopalan, head of the Naz Foundation, which led the legal battle to overturn the ban on homosexuality, said, “I am so exhausted thinking that we’ve been set back by a 100 years. What ages are we living in? What is this reflective of us as a culture, what does this say of us as a people? It’s bizarre that we got the judgment that we did. It’s really pathetic and sad.”
Gay sex has long been frowned upon in India, but the 2009 judgment had encouraged homosexuals to come out in the open. In recent years, gay pride marches have been held in major cities like New Delhi and Mumbai, though in a country where acceptance of homosexuality is low, some participants still covered their faces during the marches.
Among those who had challenged the 2009 law decriminalizing homosexuality was the All India Muslim Personal Law Board. Its spokesman, Zafaryab Jilani, said Indian heritage has been upheld by the Supreme Court’s ruling.
He says things (homosexuality) which had never been accepted in India cannot be legalized. He says homosexuality is not just against Islam, but against all religions.
With the Supreme Court saying that it is up to the legislature to take a fresh look at the law banning homosexuality, all eyes are now on the government. But with elections due next year, it is unlikely to take a stand.
India’s Law Minister Kapil Sibal reacted cautiously, saying the Supreme Court’s opinion must be respected. He did not say what the government’s next move would be.
“We have the prerogative to make laws. We shall exercise our prerogative. I am not going to extend my comments beyond that,” he said.
Although the law, which carries a maximum 10-year jail sentence, is seldom enforced, India’s gay community has long complained of harassment by police.