NEW DELHI — India’s Supreme Court on Wednesday upheld a colonial-era, anti-gay sex law, dealing a major blow to the gay, lesbian and transgender communities.
A two-judge bench reversed a 2009 verdict by the Delhi High Court, which had ruled that section 377 of the penal code violated fundamental rights guaranteed under the constitution.
The 1861 law makes “carnal intercourse against the order of nature with man, woman or animal” a criminal act punishable by prison up to 10 years.
The Supreme Court panel ruled that there was nothing wrong with the constitutional validity of the law, and said it was up to Parliament to repeal it if deemed inappropriate.
The lower court’s judgment had been challenged in the Supreme Court by some Hindu, Muslim and Christian groups.
“This is a victory of Indian culture and our value system,” a lawyer representing an Islamic charity said outside court. “Parliament represents the sentiments and values of millions of Indians and these decisions should be made in parliament and not in court.”
India’s community of gay men, lesbians and transgenders reacted with shock. They were supported by lawyers and human rights activists who called the ruling retrograde.
“This is imposition of a medieval mindset on the people of this country,” additional solicitor general Indira Jaising said.
“This is a terrible setback for the LGBT community. It will lead to greater harassment by police and force people underground, reducing their access to healthcare,” activist Ashok Row Kavi said.
Lawyers for the original petitioner, Naz Foundation, said they would seek a review by a larger constitutional bench of the court.
The foundation, which works with people living with HIV/AIDS, originally petitioned the court to decriminalize homosexuality to increase their access to healthcare and prevention.
India has made progress in controlling HIV/AIDS in recent years, more than halving the number of reported infections, and health workers say the 2009 judgment has contributed substantially.
The federal government did not object to the Delhi court verdict.
Federal Law Minister Kapil Sibal said while the court was the final arbiter on the validity of the law, it was up to Parliament to decide what that law should be.
With general elections scheduled to be held by May 2014 and a weak federal ruling alliance government, rights activists do not see much hope of the sensitive issue coming up in Parliament soon.
“Police continue to harass us, now they will harass us more,” said gay rights activist Rakesh Shaleen. “We will again be open to discrimination and violence, this single judgment has reversed so much.”
