The Supreme Court on Wednesday reinstated a colonial-era ban on gay sex that enables the jailing of homosexuals in a major setback for rights campaigners in the country.
A two-judge bench struck down a landmark Delhi high court ruling in 2009 which found that section 377 of the Indian penal code prohibiting "carnal intercourse against the order of nature" infringed the fundamental rights of Indians.
The decision four years ago to decriminalise gay sex emboldened the still largely closeted homosexual community which has since campaigned publicly against widespread discrimination and ignorance.
But the Supreme Court bench, headed by GS Singhvi on his last day before retirement, found the high court had overstepped its authority and that a law passed by the British in 1860 was still constitutionally valid.
"It is up to Parliament to legislate on this issue," Singhvi said in the judgment which crushed the hopes of activists who had fought the case and led to tears outside the court in central New Delhi.
The 2009 ruling was strongly opposed by religious groups, particularly leaders of Muslim and Christian communities, who appealed to the Supreme Court and were delighted with Wednesday's outcome.
"Such a decision was totally unexpected from the top court. It is a black day for the community," Arvind Narayan, a lawyer of the Alternative Law Forum gay rights group, told reporters outside court. "We are very angry about this regressive decision of the court."
Law minister Kapil Sibal promised to review the ruling, but a new gay rights law that would have limited public support is unlikely to pass the Parliament before general elections next year.
"We have the right to make laws and we will exercise that. If the Parliament runs we shall take up this issue," Sibal told reporters.
Terming this day as a black day, Anjali Gopalan from the Naz Foundation said, “How could they do this? We will read the judgment carefully and look at all our legal recourses,” she said. The activists felt that a big battle for the community lies ahead and there is an urgent need to rebuild the movement for gay rights.
“The next step is to rebuild the earlier movement against section 377 and every other form of violence, legal and non-legal, against LGBT communities. The Delhi high court order did not call for the repeal of 377 nor did it address any of the issues that actually affect poor and marginalised LGBT communities across the country,” said activist Ashley Tellis.
Amnesty International called the decision a "body blow to people's rights to equality, privacy and dignity", while a legal challenge from gay rights groups is also possible.
Religious groups who opposed the 2009 repeal hailed the reinstatement of the law, which is rarely invoked in practice.
Activists say police use it to harass and intimidate gays who can be threatened with sentences of up to life imprisonment.
"We know that homosexuality is against nature," general secretary of the All India Muslim Personal Law Board, Abdul Raheem Quraishi, said. "It goes against all its laws and it is what led to the spread of HIV/AIDS."
The United Nations Development Programme on HIV/AIDS had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/AIDS which affects an estimated 2.5 million people here.
Gay sex has long been a taboo subject in India, where homophobic tendencies abound and many still regard being gay as a mental illness.
The 2009 ruling was widely described as India's "Stonewall" moment in reference to protests in New York 40 years earlier after a police raid on a gay bar which helped launch the gay and lesbian rights movement.
In recent years, the community in India has raised its profile through gay pride marches, magazines and events which have encouraged many to come out of the closet.
But the country still has no major gay public figures in politics, entertainment or sport. (Sadly I think this is true. I can only recall Manvendra Singh Gohil aka the first openly gay prince. Karan Johar, one of Bollywood's biggest directors, is often ridiculed for supposedly being gay, but he himself is homophobic.)
Celebrities React -
Shashi Tharoor, Congress minister
The Supreme Court has urged Parliament to delete Section 377 from the statute book. As an MP, I am strongly in favour of doing so.
Shruti Haasan, actress
Second 377, it’s frightening how someone else decides how, when and who you should love – basically freedom of choice isn’t legal anymore.
Taslima Nasreen, writer
India banned love. Shame! Shame! India celebrated Human Rights Day yesterday. Today India passed the verdict against Human Rights to have consensual sex.
Chetan Bhagat, writer
We are going to put cops behind gay couples. That’s the India we are supposed to create in the 21st century? Criminalizing a sexual preference other than your own is the issue. Whether you like gay people or not, they can’t be deemed criminals.
Farhan Akhtar, actor and director
The Supreme Court got it wrong today.
Vir Das, comedian
Today is 11.12.13. Unless you work in our Supreme Court, in which case it’s the year 1826.
Anushka Sharma, actress
So disappointed with the SC verdict. Freedom is such a deceptive term. Rights are an ambiguous mystery.
Mia Farrow, actress
Very dark day for freedom and human rights as Indian Supreme Court rules to criminalize homosexuality.
Celina Jaitly, actress
Laws are meant to protect people. However, this law 377 will be used to blackmail, abuse, violate, humiliate people.
Neha Dhupia, actress
How can love be illegal?
Rahul Bose, actor
So much for those believing the judiciary is ‘the last bastion of common sense’ in this country.
Anupam Kher, actor
We obviously don’t believe in EQUAL Rights even in the Times when we send Mangalyaan to Mars.
This is honestly so regressive. What is even more fucked up is that it is common knowledge that before the British Raj homosexuality was more or less tolerated in India. Now they are upholding a ban made in the colonial era, SMDH. A sad day indeed.