In 2009, the Delhi High Court ruled that a 19th-century provision in the nation’s penal code that effectively banned gay sex shouldn’t apply to consensual acts.
On Wednesday, the Supreme Court rejected that decision, saying the old law was still constitutionally valid and could only be changed or erased by Parliament, not the courts.
Rights groups say the law—known as Section 377 for its place in a 150-year-old Indian penal code—had been used for decades to harass homosexuals.
“We hold that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High court is legally unsustainable,” the two supreme-court judges who presided over the case said in their 98-page judgment, released late Wednesday.
Gays across India were shocked by the decision. Most had expected the country’s highest court to uphold the landmark decision, which had been seen as a crucial first step in empowering India’s gay community.
“I think this is a dark day for the constitution,” said Gautam Bhan, a gay-rights activist and Delhi-based urban planner who came to India’s Supreme Court on Wednesday expecting to celebrate. “Never before has a Supreme Court taken away an expansion of rights to Indian citizens and reversed a move toward inclusion.”
The Indian government had no official reaction to the judgment Wednesday. Some officials said they needed more time to study the court decision.
“India’s reputation is taking a beating,” Madhu Mehra, the executive director of Partners for Law in Development, a New Delhi-based legal-advocacy group, said. “This is the last thing we needed, particularly after the movement for greater freedom and equality in India.”
The colonial-era law at the heart of the decision Wednesday has existed since 1860. It prohibits people from engaging in “carnal acts against the order of nature,” and was used against same-sex couples.
Many Commonwealth countries inherited the Victorian-era law during British colonial rule. Countries such as Malaysia, Indonesia, Pakistan and Sri Lanka, among others, still have some version of it on their statute books, said Meenakshi Ganguly, the South Asia director of the U.S.-based Human Rights Watch.
Australia, Fiji, Hong Kong and New Zealand are among Commonwealth countries that had the law, but abolished it, she said.
“Human-rights advocates were looking to India to take the lead on this so that similar changes could be made in other countries,” said Ms. Ganguly.
India’s retreat on the rules now in effect makes consensual sex between same-sex adults punishable by a fine and a prison term of up to 10 years. – WSJ