Thaddeus Baklinski

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India Supreme Court upholds law against sodomy

Thaddeus Baklinski

NEW DELHI, December 11, 2013 (LifeSiteNews.com) - The Indian Supreme Court has upheld a controversial provision of the country’s Penal Code that criminalizes all forms of "unnatural sex," a clause that has been widely understood to include sodomy.

Section 377, which has been criticized by homosexual advocacy groups as violating their rights, does not specifically mention homosexuality, but rather targets all sexual offences deemed unnatural. It reads: "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.''

The Supreme Court decision overturns a 2009 Delhi High Court ruling that found Section 377 unconstitutional in that it criminalized consensual sexual acts of adults in private.

Litigation over the issue has been ongoing since 2001 when the Naz Foundation, a London, England based homosexual activist organization that promotes and attempts to legalize homosexual behavior in South Asia, filed a petition in the Delhi High Court challenging the constitutional validity of Section 377.

In 2004 the Delhi High Court found against the petitioners, saying that the “validity of a law” cannot be challenged by a party who is “not affected by it.”

At that hearing a lawyer arguing the case for the government said, “Indian society, by and large, disapproves of homosexuality and justifies it being treated as a criminal offence even when adults indulge in private." He also argued that the law was rarely used to prosecute homosexuals but was often used to punish sexual abuse of children and to support other laws against rape.

In 2006 the Naz Foundation appealed the Delhi High Court decision to the Supreme Court, which declined to hear it and remanded it back to the High Court. That led to the High Court’s July 2, 2009 ruling finding the statute unconstitutional.

“We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution,” the 2009 ruling stated. “The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. By 'adult' we mean everyone who is 18 years of age and above. A person below 18 would be presumed not to be able to consent to a sexual act.”

This decision was subsequently appealed to the Supreme Court, with numerous organizations filing challenges to the High Court verdict, including the All India Muslim Personal Law Board, the Utkal Christian Council, the Apostolic Churches Alliance, and the pro-life group Trust God Ministries, which engaged a high-profile lawyer to present arguments in favor of maintaining Section 377.

Mr. Sunsun C. Jose, a pro-family activist from Bangalore, told LifeSiteNews in an email that he believes the arguments presented by Sr. Advocate Mr. Radhakrishnan were pivotal in forming the judges’ opinion.

Today's Supreme Court judgment states that, "The statute does not directly violate the fundamental rights ... and that no class was targeted by the section and no classification has been made in it. Hence the finding of the High Court that this law offended Article 14 as it targets a particular community known as homosexual or gay is without any basis …"

The Supreme Court justices, G S Singhvi and S J Mukhopadhaya, also leveled criticism at the government for what they called a "casual approach" to the issue, in that while it is appropriate for the courts to determine the constitutionality of a law, it is the government's role to legislate on changes to the criminal code.

"It is for the legislature to look into desirability of deleting section 377 of the IPC," the Supreme Court justices said.

Attorney General of India Indira Jaisingh told the media that the Supreme Court's ruling was a proper interpretation of the constitution and was not a reflection of the issues being raised by the public or media.

Law Minister Kapil Sibal told the media that the Supreme Court's verdict was final and the Parliament can consider changes only through new legislation.

"As you will expect," Mr. Sunsun Jose wrote in his email to LifeSiteNews, "the media is in an uproar with biased reporting. The only supporters of the Supreme Court ruling are portrayed to be religious maniacs. On the other hand, I believe it is hard to find people who can frame the issue in non-religious terms, even if the media wanted to find one."

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