Being Gay in India is a Criminal Offence.

In a path-breaking judgement, in July 2009, the Delhi High Court had read down Section 377 of of the Indian Penal Code, which criminalizes homosexuality, to exclude consensual sex between adults in private in its judgment in Naz Foundation v. Union of India (2009), holding that the law making it a criminal offence violates fundamental rights.

"We declare Section 377 of IPC in so far as it criminalizes consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution," a Bench comprising Chief Justice A P Shah and Justice S Murlidharsaid.

Various religious groups had appealed against the widely hailed ruling, calling homosexuality a western import that hurts Indian society and family values.

In a shocking development, the Supreme Court today overturned the historical Delhi High Court ruling of 2009 and has recriminalized homosexual sex.  In almost a shockingly regressive manner the said judgement was supported by a few like :

·         Mohammad Abdul Rahim Quraishi, spokesman, All India Muslim Personal Law Board: “We are very happy with the judgment. There is no space for homosexuality in our social setup. It is a sin, it is a heinous crime.”

·         K. Radhakrishnan, Trust God Ministries: Homosexuality is a Western phenomenon. It has polluted the minds of young Indians.The court has recognized this. We are very grateful.

·         Subramanian Swamy, Bharatiya Janata Party: Homosexuality is a malfunction of the human body and should be treated medically. I welcome Supreme Court judgment holding homosexuality as illegal. It is no accident that men and women are born in equal proportion. Moreover survival of the human race requires one man one woman cohabitation. The government and corporates must fund research to find a cure for homosexuality at the earliest. It is a malady that should not be celebrated but cured with compassion

However this judgement was also criticized largely by the legal fraternity and by the human rights activists.

Former Attorney General of India Soli Sorabjee has said that he was deeply disappointed by the SC judgement: This judgement shows a little bit of intolerance. The judgement shows traditiomal thinking. Deeply disappointed that our Supreme Court has given a judgement is deeply retrogressive. A little bit of sensitivity should have been shown to the people with a certain inclination.

Indira Jaising, Additional Solicitor General of India, Co-founder, Lawyers Collective: I think it’s an erroneous interpretation of the Constitution of India. The court should have recognized that we live in the 21st century. Each individual has the right to choose their sexuality. “Every human being has the right to live their life the way they want to live it. It’s not just disappointing; it’s almost contrary to the constitution of India. Historical opportunity to expand constitutional values has been lost. 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 ASG Indira Jaising on Supreme Court verdict on homosexuality

Chapter XVI, Section 377 of the Indian Penal Code is a piece of legislation in India introduced during British rule of India that criminalises sexual activity "against the order of nature." The section was read down to decriminalise same-sex behaviour among consenting adults in a historic judgement by the High Court of Delhi on 2 July 2009. The judgement by the High Court of Delhi on 2 July 2009 was set aside, however, by a ruling of the Supreme Court on 11 December 2013, in which the ruling stipulated that amending or repealing Section 377 should be a matter left to Parliament, not the Judiciary. Section 377 continues to apply in the case of sex involving minors and coercive sex.

377. Unnatural offences: 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 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 offense described in this section.

The ambit of Section 377, which was devised to criminalize and prevent homosexual associations - sodomy in particular, extends to any sexual union involving penile insertion. Thus even consensual heterosexual acts such as fellatio and penetration may be a punishable offense under this law.

The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication Less than Gay: A Citizen's Report, spelled out the problems with 377 and asked for its repeal.

 In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust,  filed public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. The Naz Foundation worked with a legal team from the Lawyers Collective to engage in court. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the Petitioners had no locus standi in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. Naz Foundation appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit. Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices Against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.

In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality. On 7 November 2008, the seven-year-old petition finished hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move. On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated.

Eventually, in a historic judgement delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section, legalising consensual homosexual activities between adults. The essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgement, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

Batches of appeals were filed with the Hon’ble Supreme Court, challenging the Delhi High Court judgment. 15 Special Leave Petitions (SLPs) were filed in the Supreme Court appealing against the said decision on behalf of mostly faith-based and religious groups from all parts of India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. Importantly, the Union of India did not appeal against the judgment and the Supreme Court too did not grant a stay on the operation of the same. On 27 March 2012, the Supreme Court reserved verdict on these. After initially opposing the judgment, the Attorney General G. E. Vahanvati decided not to file any appeal against the Delhi High Court's verdict, stating, "insofar as [Section 377 of the Indian Penal Code] criminalises consensual sexual acts of adults in private [before it was struck down by the High Court] was imposed upon Indian society due to the moral views of the British rulers."

On 11 December 2013, the Hon’ble Supreme Court ruled homosexuality to be a criminal offence setting aside the 2009 judgement given by the Delhi High Court. The only saving grace was that the bench of Justices G. S. Singhvi and S. J. Mukhopadhyaya however noted that the parliaments should debate and decide on the matter.

So for now the conclusion according to our law, politicians, judiciary and some people, is that rapists get 7 years, gays life imprisonment. Gays, you continue to be a citizen and a tax payer but your freedom to decide who you want to love and sleep with is not yours anymore. In short now it is the prerogative of the judiciary and government to step into our bedrooms.

Its not easy being a gay in the largest democracy in the world. It should have been but the truth is far from it. An interesting blog that I read today : http://blogs.wsj.com/indiarealtime/2013/12/11/being-gay-in-india/

This is what being regressive is all about. We go back to 1860 in one shot.