New details of the Indian Supreme Court ruling that reinstated the country’s ban on gay sex have emerged, with the justices writing in their decision that the law should not be struck down because it had not been proven to them that gays were discriminated against.
The justices wrote that the Naz Foundation that had brought the 2009 case in the Delhi High Court that had struck down the ban had ‘miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them.’
The justices acknowledged data presented to them by the Indian Health Ministry’s Department of AIDS Control that showed higher rates of HIV among Indian men who have sex with men compared to the general population but said that this was ‘wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society.’
The justices noted that the Indian Penal Code had been amended 30 times by lawmakers in the 64 years since it was adopted by an independent Indian Government and said this showed that it was for lawmakers to decide whether to amend Section 377 – not for courts.
However with general elections in five months there appears to be no appetite to amend the law among Indian lawmakers, with no major parties expressing the will to push for the reform since the court’s decision.
The decision by the court has been dubbed the ‘worst event to happen in global gay rights,’ this decade, criminalizing 17.5% of the world’s gay men.