India Supreme Court recriminalizes homosexuality
The Supreme Court of India has set aside a 2009 Delhi High Court ruling that legalized homosexuality, passing the issue back to lawmakers to deal with in a major setback for LGBTI rights in India
India’s Supreme Court has found the country’s colonial era Section 377 anti-sodomy law legal – potentially seeing a return to the criminalization of India’s LGBTI community.
The Supreme Court justices said that Indian society was not yet ready for the law to be repealed and handed the issue back to lawmakers to deal with.
‘It is for the legislature to look into desirability of deleting section 377,’ Supreme Court justices G S Singhvi and S J Mukhopadhaya ruled.
The Indian Government had spoken in support of the law being struck down but it remains to be seen whether lawmakers will now act to amend the law themselves – particularly with Indians to vote in general elections in five months.
The verdict dismayed activists and journalists who were following the Supreme Court’s decision on Twitter, with Shivam Vij of the Express Tribune tweeting, ‘Two judges of the Indian Supreme Court have just decided that 1.2 billion people can have sex only in the missionary position.’
Executive editor of Mid Day newspaper Sachin Kalbag tweeted his disappointment as well.
‘Supreme Court confirms India’s position as world’s most backward thinking nation. Well done!’ Kalbag wrote.
India’s Gaylaxy Magazine called the ruling a ‘black day for [the] LGBT community of India.’
‘It is official now, religious nutheads rule this country! The fight for LGBT rights has just been pushed back by 15-20 years!’
Firstpost.com senior editor Lakshmi Chaudhry tweeted, ‘Supreme Court of India, still partying like its 1899. An unconscionable act of judicial cowardice.’
Gaysi Family tweeted, ‘Surely our justice system has today made all the dead Britishers who enforced this suppression upon us, very proud!’ in response to the ruling on the colonial era law.
There were calls for public protests within minutes of the court’s decision being made public.
GSN understands there will be a gathering to protest the ruling at 4.30pm today in New Delhi in a park near Palika Bazaar.
GSN understands that protests are being organized in other cities across India as well including one outside the Chennai Press Club at 4pm.
The Naz Foundation who brought the original challenge to Section 377 were not yet available to comment but LGBTI rights coalition the Chennai Rainbow Coalition called the ruling a tragedy.
‘We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation,’ a spokesperson for the groups said.
‘The decision … attempts to stem the tide of history.
‘The Supreme Court has, in one fell stroke again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’. The judgment of the Supreme Court is an unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment.
‘It is a tragedy that this judgment forgets the vision of the founders of the Indian republic which was so eloquently captured by the Delhi High Court. By recriminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru.
‘The judgment is thus a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognized and that equal treatment is a non negotiable element of the world’s largest democracy. In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.
‘We proclaim that inspite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice. We pledge to continue this struggle with re doubled vigor till such time that Section 377 is consigned to where it belongs the dustbins of history.’
Secretary of the Indian Ministry of Health’s AIDS Control Department, Lov Verma, had said just prior to the ruling that he hoped today would be a day of triumph for the sexual minority community but that was not to be.
Section 377 of the Indian Penal Code was enacted in 1860 by the British colonial regime to criminalize ‘unnatural offenses.’
‘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,’ Section 377 reads.
‘Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.’
Section 377 was struck down in 2009 by the Delhi High Court as a result of a challenge by Delhi based HIV awareness and prevention group The Naz Foundation.
‘We declare that Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution,’ Chief Justice Shah and Justice Muralidhar ruled in 2009.
In the four years since the ruling India’s LGBTI community has become increasingly visible, holding pride marches in many major cities and opening gay businesses, and gay characters and themes have been increasingly popular topics for filmmakers.
However the decision by the Delhi court was challenged by religious groups in 2012 after India’s Attorney General refused to challenge the ruling after initially opposing it.