In Shocking Ruling, India’s Supreme Court Restores Criminalization of Gay Sex

The Supreme Court of India said on Wednesday that a colonial era law banning gay sex should not have been struck down, reversing a 2009 decision, the NYT reports:

IndiaThe ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law that forbids “carnal intercourse against the order of nature with man, woman or animal” was unconstitutional. The 19th century law, passed by the British, makes gay sex punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. And with the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospects of any legislative change happening for years is highly unlikely, analysts said.

Anjali Gopalan, founder of a charity that sued to overturn the 1861 law, said she was “shocked” by the ruling.

“This is taking many, many steps back. The Supreme Court has not just let down the L.G.B.T. community,” Ms. Gopalan said, referring to gays, lesbians, bisexuals and transgenders, “but the constitution of India.”

IndiaReuters adds:

The move shocked gay rights activists, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, India's Supreme Court has made progressive rulings on several rights issues.

"We see this as a betrayal of the very people the court is meant to defend and protect," said Arvind Narayan, one of the lawyers representing the consortium of gay rights groups that was defending the 2009 judgment.

"In our understanding, the Supreme Court has always sided with those who have no rights."

Faith-based groups lobbied the court heavily:

"All the major communities of the country — the Hindus, the Christians and the Muslims — had appealed against the ruling of the Delhi High Court," a lawyer for a Muslim charity told reporters.

"They had said that this unnatural sex is not permissible in all the religions of the world."

Thursday's decision could now be appealed through a so-called "curative petition", which would be heard by a panel of five judges.

Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners including parents of LGBT persons, mental health professionals, academics and law professors, issued a statement:

We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. The decision by overturning the historic Delhi High Court judgment which recognized that LGBT persons are full citizens of India, attempts to stem the tide of history. By overturning the Naz Foundation judgment, 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 a unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment. It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence and harassment.

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 re-criminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru. It equally abandons the principle of constitutional morality (ie majorities dont have a charter to discriminate against minorities purely because they are majorities) articulated by Dr. Ambedkar which is the cornerstone of a diverse and plural nation.

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.

This decision today along with the decisions upholding the emergency and legitimizing rape marks the lowest ebb in the illustrious history of the Supreme Court. In 1975 in ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathuras case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law.

Hard as this decision is and difficult as the road forward may be, we draw strength and inspiration from ordinary LGBT persons who will not allow this to affect the way they lead their lives. In the course of the last ten years or so, LGBT persons have begun to lead their lives openly and publicly proclaiming their claim to equal citizenship. The page of history has turned and no power on earth can deny LGBT persons the right to freedom, equality and dignity. Rights are not conferred by the Court, as the Naz judgment said, they are merely confirmed by them. The rights of LGBT persons cannot be taken by this decision.

We proclaim that in spite 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 vigour till such time that Section 377 is consigned to where it belongs- the dustbins of history.

Comments

  1. MaryM says

    I suppose trade sanctions will not be imposed on backward India for this shameful decision.

    A boycott of all Indian goods and services needs to be enforced.

    If you use a call center that is based in India then contact the company that subcontracts their call center to India and ask to use a non-Indian call-center.

    India is a disgrace of a country – it is also the rape capital of the world – a hard, savage, backward, bigoted dump.

  2. MaryM says

    Religion is pure evil by the way.

    Belief in ‘god’ is a mental illness which is used to excuse vicious evil bigotry.

    Religion is cancer. ‘God’ is a sick f***er

  3. Craig says

    I have been living in Mumbai India for the past 6 years. We were all hoping for a ‘DOMA moment’ today. It is a horrible step for this country, the mood is here is of shock and horror. Like in many countries, sadly, the Government here is not of and for the people. These laws mainly effect those closeted gays who can now be subjected to blackmail and police intimidation. it is a very sad day.

  4. UFFDA says

    “…not permissible in all the religions of the world” because all the religions of the world are wrong. On the other hand all leading metaphysical informants – (spirituality without dogma) – entirely support homosexual love.

  5. Akash says

    @marym You are just dumb and to be honest, I know why but still, try to not get overexcited for things that you clearly don’t have any idea about! We are already in a great distress here and believe me, such silly remarks from an evidently ignorant person is not a help either.

  6. MaryM says

    Sorry Akash – but India IS the rape capital of the world. This is a fact.

    And this evil, savage and backward decision to recriminalise being gay shows that India can rightly be regarded as a hate-filled, evil dump of a country.

    Aid and trade sanctions should be imposed on India.

    All Indian goods and services (including call centers should be boycotted.)

    Does anyone have a list of US companies who subcontract their helpdesks and call centers to India.

    We need to start pressuring these companies to withdraw from bigoted India until this savage, moronic law is quashed.

  7. brian1 says

    @Akash

    Please ignore MaryM, who also goes by many other names on this site (originally Jason). he hates all countries outside of the US, as well as all women. He has several other phobias as well, too many to go into here.

    This decision puts India back to where the US was in 2003. Fully agree it was a terrible setback, but MaryM’s hysterical reaction has nothing to do with gay rights and everything to do with being a piece of racist trash.

  8. Aniket says

    This is ridiculous. This has proved yet again that we Indians don’t like to keep our words. Once, decriminalized how come again some literally asses criminalize relationship of LGBTs?

  9. MaryM says

    India is a dump of a country.

    Consensual homosexuals are criminalsed by the law, yet public gang rape is largely ignored.

    Millions in breathtaking poverty and degredation, yet a space programme.

    Weird, backward, hateful dump.

  10. MaryM says

    There is no such thing as ‘gay rights’. There are human rights. Criminalising being gay is a human rights abuse.

    India is a massive human rights abuser and must be condemned and boycotted.

  11. MaryM says

    Western companies which outsource to India must be pressured into reversing this trend.

    They must face a backlash for this.

    India will need to be punished financially for this savagery.

  12. brian1 says

    @Jason,

    What would a backlash accomplish? The supreme court would reconvene, look at the reduced profitability of Indian call centres and then declare they made the wrong decision? You’re just a ridiculous person.

    And remember this law was put in place by the British in all the former colonies. It still exists in most of them. India was almost able to overturn it but that’s been reversed by the Supreme Court. If you really want to boycott India because of their British imposed anti-gay law, which is exactly the same as the law in most US states just ten years ago, you’re going to have to boycott a huge slice of the world.

    But you really want to boycott because you hate Indians, so just be honest with your reasons.

  13. Derrick from Philly says

    Well, guess what? If Obama or another Democratic president (hopefully Hillary) doesn’t make the next appointments to OUR Supreme Court we may see civil rights for American Gay people (and other minorities) chipped away.

    You all know that there are forces in OUR country who love what just happened in India.

  14. SpaceCadet says

    The U.S. Supreme Court like the American legal system in general, follows the concept of precedent. It also doesn’t allow into its chambers lawsuits with issues that it has previously already ruled on. And it also likes to avoid dealing with issues that it feels are controversial and should best be left up to the voters or legislatures to resolve. That is why it is very unlikely that court will hear gay issues similar to what they have already heard much less reverse itself on DOMA or Lawrence v. Texas.

    This ruling in India is very shocking. India is very populous so the ruling effects a very sizeable gay community and even straight people who have gay sex. India was never high on my places to visit and vacation in but now I have absolutely no desire to go. I think the LGBT community would best respond to this ruling by a self-imposed boycott of tourism there. That is an effective way of making a political statement and not giving them anymore tourist dollars.

  15. MaryM says

    BrianI – firstly I am not Jason.

    Secondly don’t try to blame Britain for these savage developments in India.

    Many former colonies have discarded British homophobic laws – Ireland; Canada; Australia; New Zealand.

    Primitive and backward India repealed the law and then decided to reinstate it. That is not colonialism’s fault. It is merely a sign of India’s stupidity and bigotry.

    As for a backlash against Indian call-centers – are you really so stupid that you don’t realise that if Indian politicians understand that their country’s moronic and evil bigotry s harming the country financially that it won’t encourage them to repeal this savage, primitive bigotry.

    Then again considering how rape is an accepted part of life for Indian women I suppose they may not care about poverty.

    Hideous, backward dump of a country.

  16. MaryM says

    Don’t blame Britain.

    Other former colonies have advanced beyond savage bigotry.

    India briefly did but then its primitive court system decided that it likes savage bigotry.

    India is a disgrace of a country.

  17. MaryM says

    Gay rights activist Ashok Row Kavi said that the gay community had planned a protest rally in Delhi but had been denied permission by the police.

    “The police has said that if anyone protests against the Supreme Court judgement will be arrested,” he said.

  18. Joel says

    India is just not a civilized place. This has nothing to do with race, and everything to do with behavior. There is their toleration of rape, and their opposition to gay people. I am so glad to stay away from such an uncivilized place.

  19. brian1 says

    Jason

    Are you really so moronic that you don’t understand the difference between the judicial and legislative branches? India did not repeal, and did not reinstate, this law. Or ever vote for it, for that matter. The british, (yes, your beloved white british) instituted the law. A high court decision ruled it unconstitutional, and the Supreme Court overturned that decision. So unless the judges own call centres, they couldn’t care less about your silly racist motivated boycott threat.

  20. UFFDA says

    MARYM – and let us not forget 60 million Untouchables…and otherwise intelligen people call India a democracy? What a joke. India in fact is so tradition bound it needs to have its very foundations dismantled or blown to bits so that it can reconstruct itself. The recognition and celebration of gay people is one of the ways this seems to be happening in many places that need it. Their Supreme Court has made a mistake. Ours has made a lot of them. Give them time and, as in Russia, with Western help, let India’s own gay people lead the struggle, which they will do and ultimately do very well. There is no doubt at all that gay people are at last in the ascendant and this very historic event will not be thwarted by any majority, any nation or any tradition.

  21. Derrick from Philly says

    @ “Their Supreme Court has made a mistake. Ours has made a lot of them. Give them time…”

    OK, I’ve got to play the Powerball Lottery tonight. I actually have to thank UFFDA for a comment.

  22. MaryM says

    Brian1

    Unless the Indian government announces immmediate plans to legalise being gay then effectively is supports the recriminalisation of being gay.

    At the current moment (and until section 377 is repealed) it is accurate to call India a savage, backward, hateful dump which deserves scorn and contempt.

    And even if they decriminalise being gay India still has to deal with public acceptance of gang rape.

    Hideous place.

  23. anon says

    The real problem here is that many gay Indians came out of the closet after the first ruling and now what can they do? They are now subject to arrest and blackmail, after having come out and even starting relationships.

  24. Jack Ford says

    I’m British and disagree with whatever MaryM is trying to say about India. Obviously the Supreme Court’s decision isn’t representative of Indian society otherwise this would not be such a shock. Let’s not blame the British of today though for the actions of our ancestors – which was to export law governed by Christian principles around the world (We weren’t the only ones – see Spain). Decolonisation was more or less complete by the 1960s and we decriminalised homosexuality in 1954, before the first state in Australia (South Australia 1975) and the first state in the United States (Illinois 1962) and long before both those countries would have universal decriminalisation (Australia 1997, US 2003). The British Empire is dead and these now sovereign nations have had (at least) over half a century to get their laws in order and throw off the British yolk of colonialism.

  25. Aniket says

    @marym do you em even know the grounds in which trade sanctions could be imposed!? Lol Funny that you think yourself to be progressive when you’re nothing but a sad existence to say the least! Seriously ignorance is bliss!

  26. Anthony says

    This is exactly why we need to continue to COME OUT. That’s why here in the US we are going in the correct direction because the general public is finally understanding it because their kids, grandkids are gay. In India, it is a cultural closeted hellhole.

  27. ratbastard says

    What Jack Ford said. I’m always amused how some demonize the British for actions of their former empire, yet rarely utter a peep about the Spanish, Portuguese, French,etc. The former British colonies overall (U.S. included) have been the most successful in their independence. All you. need to do is look to South America and compare the former Spanish and Portuguese colonies vs the former British colonies of North America, Australia/N.Z. And I’m not really even blaming Spain and Portugal for present day problems, but they laid a far more unstable foundation for their former colonies vs the British.

  28. andrew says

    It looks like Koran thumping Muslims and Bible thumping Christians are not the only narrow minded bigots. Come on down, bigoted Hindus, Gandhi would be so proud of you. NOT!!!

  29. Howard B says

    Lest we forget, gay sex in the USA was not decriminalized UNTIL 2003! Before you start calling other countries uncivilized and demanding boycotts, try reading some history books about the gay rights struggle in the USA and it will put things into perspective. As a senior citizen I’ve lived through a lot of history. While the Indian high court ruling was awful, it just means the Indian gay rights activists have a lot of work to do.

  30. andrew says

    What do Hinduism, Islamism, Judaism, Christianism Etc have in common? They are rooted in primitive myths which cloud the mind and oppose human freedom and progress.

  31. Saturnalia says

    Interesting that BRIC countries all have laws that put homosexual propaganda in a control. ANd since homosexual activist in the US can not do anything to influence those countries they resort to name calling.

    Brave move for India. Their legislators knew with what antagonism they are going to be faced and yet took to preserve their tradition and will of the people.

    Basically the West should take a clue from all this and stop enforcing their cultural views on other countries. You legislate away as you please, but leave the rest of us to do as we please in our own backyard.

  32. SAYTHETRUHT says

    How nice! They ensured that hundreds of thousands of corrupt policemen can keep their bribes running by extorting LGBT people. Everybody knows India’s fuel is corruption. That’s how India naturally function, don’t ask for changes for the better.

  33. brian1 says

    @Saturnalia

    Yes, the name calling of a few (specifically MaryM/Jason) is unfortunate, but that’s about the only accurate statement you made.

    Only half the BRIC’s (Russia and India) have anti-gay laws, not all as you say. And even then, there’s a weird split. In russia you can have gay sex, not just talk about it. In India you can talk about anything, you just can’t do it. And it’s not the legislature in India that did this, it’s a few old men at the Supreme Court.

    And as for leaving other countries to do as they please, what do you call Putin’s silly ideas about banning adoptions to countries with same sex marriage? That couldn’t be a more direct interference with the affairs of other countries.

  34. Saturnalia says

    BRIAN1 I might be rude to my assumption, but there is a feeling I got that those countries have a number of children for adoption also, so I suggest that they deal with their problems regarding children in foster care. No one forces foreign couples to adopt in Russia.

    The motives for such activity is based on a facts that they could easier get through the process in Russia, and the physicall apearance of Russian children ( I am being polite with former statement, but as someone actively involved in social services in Eastern Europe, people just does not want to adopt Roma children or of African descent. )

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