India’s top court overturned a lower court’s 2009 ruling that had decriminalized homosexual acts, shifting the responsibility to frame a law to address the issue on to the country's parliament.
In a move that came as a major blow to gay rights in the world’s largest democracy, the Supreme Court said the Delhi High Court had overstepped its powers in its judgment four years ago, as Section 377 of the Indian Penal Code -- a controversial law dating back to the nineteenth century when India was under British rule -- prohibits “sex against the order of nature,” which is interpreted to include same-sex acts, and is punishable by a jail sentence of up to 10 years.
“This is not a retrograde judgment,” a lawyer for a Muslim charity, which appealed against the lower court's decision, said after the ruling, Reuters reported. “All the communities - Muslims, Christians, the majority community Hindus - have all challenged the judgment of the Delhi High Court.”
Additional Solicitor General Indira Jaising was among the first to criticize the ruling: “It is surprising that the court which does judicial review on many issues has put the ball in the court of Parliament to decide on homosexuality,” NDTV reported.
Gay rights activists said the responsibility to frame a law on the issue and to repeal Section 377 now lay with the government. However, successive Indian governments have avoided getting involved in the issue, which is seen as a taboo topic among a vast section of the Indian public and the nation's religious institutions.
“The Supreme Court judgment on Article 377 is a step backwards towards barbarism and medievalism,” renowned Indian historian Ramachandra Guha wrote on Twitter.
Amnesty International described Wednesday’s ruling as “a black day of freedom in India.”
“It is hard not to feel let down by this judgment, which has taken India back several years in its commitment to protect basic rights,” the rights group said, according to news reports.
However, opinions differed, with author Tushar Gandhi, the great grandson of Mahatma Gandhi, tweeting: “May disappoint gay community, but Supreme Court verdict is correct. Judiciary must not make or negate laws. They may recommend not order.”