India's Supreme Court yesterday endorsed a colonial-era law from the 1860s criminalising gay sex.
In a major setback for gay rights campaigners, a two-judge bench reversed the 2009 Delhi high court ruling that struck down the Victorian law that enables jailing of homosexuals for up to 10 years.
In its 25-page judgment it decreed that courts should not intervene in this matter and that it was up to parliament to legislate on the issue of homosexuality.
The 1861 British law under which homosexual acts are criminalised in India also applied in Ireland until it was repealed in 1993.
Yesterday’s ruling in India was in response to a petition by several Indian religious leaders opposed to the 2009 Delhi high court judgment which declared that banning homosexuality infringed the fundamental rights of Indians.
"We are very angry about this regressive judgment," Arvind Narayan, a lawyer for the Alternative Law Forum gay rights group, said outside the court.
“Such a decision was totally unexpected from the top court. It is a black day for the community,” he added.
Dozens of gay rights activists burst into tears outside the court after the ruling was issued and hugged each other in consolation.
"We are back to square one in our fight for the democratic rights of gays" said Ashok Row Kavi of the Mumbai-based activist group Humsafar Trust.
He said gay rights activists would continue to agitate against the draconian law – frequently used by a corrupt police force to harass homosexual couples – by appealing to a larger Supreme Court bench.
Amnesty International called the decision a "body blow to people's rights to equality, privacy and dignity" and supported campaigners to legally pursue the matter further.
Earlier, the United Nations Development Programme on HIV/Aids had argued in 2008 that decriminalising homosexuality would help India combat the spread of the sexually transmitted disease, which afflicts over 2.5 million, mostly male homosexuals.
At the time, additional solicitor general PP Malhotra, representing the state, had stated that homosexuality was a “disease” and if legalised would “devastate” society as everybody would indulge in gay sex.
“Our moral and ethical values are different,” Malhotra had said, reiterating his stand against amending the law.
Gay sex is a taboo subject in conservative India where homophobic tendencies abound and are even celebrated with abandon in ancient texts.
But the majority of Indians, especially religious leaders, regard it as an illness and rail against it publicly.
"We know that homosexuality is against nature" Abdul Raheen Quraishi of the All India Muslim Personal Law Board said.
In recent years, however, especially after the short-lived victory after the 2009 high court ruling, the gay community had raised its profile through flamboyant public marches, online sites, magazines and events that encouraged many to emerge from the closet.
But unlike in the west, India still has no major declared gay person in public life, business, entertainment or sport even though many are privately known to be so.