The Supreme Court of India has rejected a court challenge to the country’s sodomy laws and has held that “unnatural” sexual acts were a criminal offence under Section 377 of the Indian Penal Code. Engaging in same-sex carnal relations was not a protected right under the country’s constitution, the court held.
In its 11 Dec 2013 decision Justices G.S. Singhvi and S.J. Mukhopadaya overturned a 2009 decision by the Delhi High Court striking down Section 377 of the code, holding there was no constitutional right to same-sex relations that trumped civil law. However, the court held the government could bring legislation to amend the law.
During oral arguments in Feb 2012, India’s Attorney-General G. E. Vahanvati had urged the court to strike down the law. After first supporting the law, the government changed tack during the appeal, urging the court to strike down the law for being an un-Indian relic of the colonial past.
Mr. Vahanvati told the court “the introduction of Section 377 in the IPC was not a reflection of existing Indian values and traditions, rather it was imposed upon Indian society by the colonisers due to their moral values. The Indian society prevalent before the enactment of the IPC had a much greater tolerance for homosexuality than its British counterpart, which at this time under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
After the Delhi High Court ruled the law was unconstitutional in 2009, Hindu, Christian, Sikh and Muslim leaders held a joint press conference denouncing the decision.
“It is an undeniable fact that unnatural sex undermines the family system, corrupts the social atmosphere, leads to moral degradation and is injurious to health. The attempt to popularise unnatural inclination in the name of democratic rights is totally misguided,” said a statement signed by Maulana Syed Jalaluddin Umari, president of Jamaat-e-Islami Hind, Shankaracharya Onkaranand, Fr. Dominic Emmanuel of the Delhi Catholic Archdiocese, Acharya Lokesh Muni of Ahimsa Vishwa Bharati and Daljeet Singh of the Dharma Pracharak Committee of the Delhi Sikh Gurudwara Management Committee.
“It must be realised that the domain of individual rights cannot be extended to include unnatural tendencies and perversions,” the inter-faith coalition said, noting that “individual rights, as is well-known, are not absolute but are subject to public order, morality and health. The social fabric cannot be permitted to be disrupted in the name of individual freedom.”
However, the religious groups were divided as to how to minister to those with homosexual desires. Maulana Syed Jalaluddin Umari told the 2009 press conference Sharia law was clear that homosexuality was a sin and should be punished.
Christian leaders said that while they believed homosexual behavior was sinful, they church should offer its love and support as gays and lesbians were not “outcasts”.
A spokesman for the Church of North India said India’s Anglicans endorsed the principles of the 1998 Lambeth Resolution 1.10 and sought to offer prayer, welcome and support to all.
However, the General Secretary of the CNI said this support should not be misconstrued. The “Church of North India does not support same sex marriages or gay marriages,” Alwin Masih told Anglican Ink.