South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Members of the lesbian, gay, bisexual, and transgender (LGBT) community broke into celebration, even kissing and hugging each other outside courtroom no. 1 of the Supreme Court on Tuesday. They had reason to cheer as the Chief Justice TS Thakur-led bench agreed to their plea to re-examine its 2013 verdict which criminalised homosexual acts and made it punishable by up to ten years in jail.

But Hindu, Christian and Muslim organisations are already in a mood to spoil their party, deciding to oppose any move to legalise homosexual acts.

They are unanimous that Indian society disapproved of homosexuality, no religion can approve it and the Delhi High Court’s 2009 decision de-criminalising homosexual acts was based on “international trend and western influence”. They vociferously argue that there is a vast cultural difference between Indian and other societies of the world.


“Homosexuality is an abomination as per the Bible. The act of sodomy, as per the Christian philosophy, faith, belief and sentiments of Christian religion as a whole is a most contemptuous sinful act,” said Manoj V George, lawyer for Apostolic Churches Alliance, who earlier submitted before the court that the curative petition (the last legal recourse) filed by Naz Foundation Trust and several NGOs representing the LGBT community will be challenged.

George informed the court that even the All India Muslim Personal Law Board (AIMPLB ) will be opposing it. It was confirmed by AIMPLB member Sayyed Qasim Rasool Ilyas, who told Mail Today: “We will oppose the curative petition also. Homosexuality is against all religious faiths. Not just of Muslims. If it is legalised, it will create problems in society.”

Joining issue, International Secretary General of VHP Champat Rai said the “practice (homosexual acts) was influenced by western culture and it is against Indian culture. Those who are influenced by the West are discussing this. Let them be..But Bharat will not accept this as it is a country with a glorious past and a thousand-year-old tradition”.

VHP says it is a serious question of culture, morality of the society and the court should not interpret the Constitution in such a manner to thrust foreign culture in India where the morality standards are not as high as in India.

Larger Bench

Referring the curative plea to a larger five-judge constitution bench, CJI Thakur said: “We would have a fresh look into the issue. Several constitutional dimensions of importance were ingrained in the challenge against Section 377 that criminalised homosexuality.”

At the outset, senior counsel Kapil Sibal, arguing for decriminalising section 377 of IPC, submitted that major constitutional issues are involved in the matter.

Sibal said the issue concerned the most private and the most precious part of life, that is right to sexuality, which has been held as unconstitutional. “Any provision that penalises an adult persons’ expression of consensual sexuality in private domain is significantly unconstitutional, he said. The Delhi High Court had, on July 3, 2009, legalised homosexual acts between consenting adults by overturning the 149-year-old law finding it unconstitutional and a hurdle in the fight against HIV/AIDS. It had said “As it stands, the section denies a gay person a right to full personhood…” The HC had said section 377 will henceforth apply only to non-consensual, penile, non-vaginal sex, and sexual acts by adults with minors.

But a SC bench overturned the HC verdict in December 2013 saying the Delhi High court order decriminalising homosexuality is “legally unsustainable” and only Parliament is empowered to change a law. LGBT and human rights activists sharply criticised the judgment saying it “would turn the clock back by centuries”.

The judgment was being viewed in India and globally as a retrograde step. The bench, which ruled that making or changing a law was the sole prerogative of Parliament, questioned why the government had not acted even 13 years after a law commission report sought deletion of the section, for which there were repeated demands. The court said this proved the Centre wanted the section to remain in the statute.

The SC said even the HC judgment said it will be valid only till Parliament amended the law in tune with the recommendations of the Law Commission in its 172nd report “and removes the confusion”.

SC had repeatedly asked the Centre’s lawyers why Parliament had not settled the issue and left it to the court.

“Probably there is no sufficient debate in society for the legislature to take up this matter. A section of society does not want this matter discussed at all. They [gays] are parading on streets. A vast section of society are against such exhibition. There has to be a larger debate. The momentum had not reached for Parliament to discuss the issue,” the then Attorney General GE Vahanvati had told the SC.

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Updated On:  February 3, 2016