Horrendous news! The India Supreme Court has overruled a lower court decision that had struck down the nation's law criminalizing homosexual activity in the world's second most populous country. Section 377 of the Indian Penal Code had been ruled unconstitutional by the New Delhi High Court in 2009 and the Indian government had agreed to accept the ruling, which meant that LGB people in the country no longer had to worry about being branded criminals by definition and subject to up to 10 years in prison. Religious groups took up the baton and appealed the decision to the Supreme Court.
However, the action by the Supreme Court overrules the lower court ruling and puts the issue at the feet of the India Parliament, which almost certainly will do nothing to change the law, which means that moving forward homosexuality has been effectively re-criminalized.
The top court said the 2009 Delhi High court order decriminalising homosexuality is constitutionally unsustainable as only the government can change a law.
This means gay sex between consenting adults stays a criminal offence under Section 377, a British colonial era law banning "carnal intercourse against the order of nature", which had been struck down by the high court. The Supreme Court said there is "no constitutional infirmity" in that law.
"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 additional Solicitor General Indira Jaising. "People expect the highest court of the land to protect their rights."
The order is "a step backwards towards barbarism and medievalism," tweeted noted historian Ramachandra Guha.
Gay rights NGO Naz foundation has said it will seek a review of the verdict.
Sad news from India. The first step to LGBT equality begins with decriminalizing sodomy. It was 10 years ago, in Lawrence vs Texas, that the United States Supreme Court ruled that all sodomy laws in the United States violated the constitution, saying that "The State cannot demean their existence or control their destiny by making their private sexual conduct a crime." Hopefully, the LGB community of India will not have to wait another 10 years before they can have their existence no longer demeaned by the laws of their country.
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