Photographer: Pedro Ugarte/AFP/Getty Images A transgender participates in a gay pride parade in New Delhi.
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A transgender participates in a gay pride parade in New Delhi.
India's top court upheld a 153-year-old colonial-era law that criminalizes gay sex, leaving it up to lawmakers to amend the legislation in a setback for homosexual rights in the world's second-most populous country.
The ruling by a two-judge bench of the Supreme Court said the law was constitutionally valid and only parliament can make any changes. The judgment reversed a 2009 verdict of the lower Delhi High Court that decriminalized same-sex intercourse between consenting adults in the nation's capital.
"It is indeed a setback," said Anand Grover, a lawyer for the Naz Foundation, which works to prevent the spread of HIV and filed a case to legalize gay sex more than a decade ago. "They have said it is not for the courts to decide. The fight isn't over."
Today's ruling comes as gay rights proponents around the globe struggle to achieve the same treatment as heterosexuals. While the U.K., France and Australia have taken steps to expand gay rights, Croatians last week approved a constitutional ban on same-sex marriage and Russian President Vladimir Putin stoked international ire earlier this year by signing a law banning the spread of so-called gay propaganda.
"The Indian government did not appeal the Delhi High Court ruling, presumably because it agreed with the decision," Meenakshi Ganguly, South Asia director of New York-based Human Rights Watch, said in a statement. "Now it should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead on ending such discrimination."
Gay Marriage
The Australian Capital Territory, which includes the country's capital Canberra, this year allowed gay marriage for the first time. Prime Minister David Cameron's bill to allow same-sex marriage in England and Wales became law in July, after France passed similar legislation in May. Canada and South Africa made gay marriage legal in 2005. In the U.S., 15 states and the District of Columbia recognize same-sex unions.
The future of India's law criminalizing gay sex now rests with a parliament prone to frequent disruptions that is on course to pass the fewest bills in the nation's history. Lawmakers retained the provision in a review of the penal code earlier this year when they tightened legislation to stop sexual assaults following street protests after the brutal gang rape of a woman in New Delhi.
During more than three years of court hearings, religious groups opposed the ruling that lifted the ban. Hindu, Christian and Muslim groups argued that the prohibition protected public health and morals.
'Retrograde'
Colin Gonsalves, a lawyer who represented one of the gay-rights petitioners, said he would appeal for a larger five-judge panel to review today's verdict and was confident the law would be struck down.
"The judgment is so retrograde and backward looking," he said. "It violates the fundamental rights of thousands of people in the country."
Section 377 of the Indian penal code, drafted by British rulers in 1860, outlaws "carnal intercourse against the order of nature, with any man, woman or animal." While offenders face life imprisonment and a fine, prosecutions are rare.
Swami Ramdev, an Indian yoga guru who says he has 20 million supporters, was among those who advocated keeping the law in place. His trust filed an appeal against lifting the ban, saying it would result in the spread of HIV/AIDS and other sexually transmitted diseases in the country.
Anjali Gopalan, director of the Naz Foundation, filed a case to challenge the law in 2001. Naz had argued the law violated rights to privacy and equality guaranteed under the constitution, and was used to harass or blackmail gay men and women in return for money or sex.
To contact the reporters on this story: Andrew MacAskill in New Delhi at amacaskill@bloomberg.net; Pratap Patnaik in New Delhi at ppatnaik2@bloomberg.net
To contact the editor responsible for this story: Daniel Ten Kate at dtenkate@bloomberg.net
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