India's Supreme Court “Re-Criminalizes” Homosexuality

India Re-Criminalizes Homosexuality
By Noopur28

On December 11h, 2013 the Supreme Court of India reinstated Section 377 of the Indian Penal Code (IPC), which criminalizes sex “against the order of nature” and makes homosexuality an offence punishable by as many as 10 years imprisonment. The law had been struck down in 2009 by the Delhi High Court upon a petition by the Naz Foundation, a LGBT rights organisation. An appeal against that decision had been filed by Muslim and Christian religious groups, Hindu politicians and astrologers.

Decriminalization Trend Termed “Foreign”

Despite arguments that the code was inherently unconstitutional, the Supreme Court bench composing of Justices G.S. Singhvi and S.J. Mukhopadhaya ruled that it was up to India's parliament to legislate in order to revoke the law, not the courts. The court said the trend of decriminalization of homosexuality across the world was “informative” but could not be the reason for revoking Indian law, even though Section 377 was written and promulgated during British rule of India in 1860. The bench's statement read:

"In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 (unnatural offences) IPC violates the right to privacy, autonomy and dignity, the high court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.”

The Supreme Court bench spoke of LGBT rights as being an issue for only a fraction of the population.”, which struck critics as trivializing and disparaging an important civil rights issue and undermining a community that faces intense discrimination from a deeply religious and conservative society.

“Nationalism” has also played a role in this debate, with the anti-gay rights lobby arguing homosexuality was “unnatural” and against Indian cultural and religious values. Supporters of gay rights pointed out that Indian civilization and Hinduism was historically liberal on homosexuality and transgender issues. Nepal, India's Hindu-majority neighbour had decriminalized homosexuality and its Supreme Court gave its consent to legalize same-sex marriage in 2008.

Gay rights activists have long identified Section 377 as a legacy of British colonial rule. Mathew Waites, co-editor of the “Human Rights, Sexual Orientation and Gender Identity in the Commonwealth” and lecturer at the University of Glasgow said "The ruling is the worst setback experienced by global Lesbian, Gay, Bisexual and Transgender movement (LGBT) movement in recent years and it is quite shocking judgment because it clearly reverses the Delhi high court ruling of 2009 and goes against the pattern of global change in relation to human rights.

India's Religious Are United When It Comes to Homophobia

Despite a long history of religious conflict in the country, the appeal to reinstate Section 377 found cooperation amongst India's religious bodies, including Islamist and Hindu nationalist groups. The main parties that brought the appeal included the All India Muslim Personal Law Board, Apostolic Churches Alliance; late B.P. Singhal, a member of the Hindu nationalist Bharatiya Janata Party (BJP) and Vishva Hindu Parishad (World Hindu Council); the Utkal Christian Council, the Delhi Commission for Protection of Child Rights; Mr. Suresh Kumar Kaushal, an astrologer and the Tamil Nadu Muslim Munn Kazhgam, amongst others.

Suresh Kumar Kaushal, an astrologer who was co-petitioner nefariously claimed legalizing homosexuality compromises national defence since soldiers will start having sex with each other.

Upon news of the decision, the All India Muslim Personal Law Board “welcomed” it. It had argued that homosexuality was illegal in Islam, and its representative Zafaryab Jilani denigrated gay Indians: "Some people wanted to live their lives in any manner they deemed fit and the Supreme Court has deemed it wrong.. A small minority wants the entire system to be changed.. They are just 1 percent of the population and they want all kinds of rights...."

Hindu yoga “guru” and political activist Ramdev, who also supported the petition, called homosexuality a “bad addiction” and offered to help “cure” it through yoga.

“Weak” Evidence For Decriminalizing?

The Supreme Court bench also pointed out that despite the recommendations of the Law Commission of India to delete Section 377, the Indian parliament had not taken any action to do so. While this ruling does not prevent further constitutional challenges to Section 377, the bench said it was showing “self-restraint” and being “guided by the presumption of constitutionality,” which was necessary in considering striking down a law that India's parliament had not itself challenged.

The justices also criticized the Naz Foundation and its allied petitioners for not providing substantial evidence in their affidavits to support their claims of discrimination against gay and transgender Indians. The statement read:

"The writ petition filed by respondent no.1 (NGO) was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM (men who have sex with men) community, it 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... Only in the affidavit filed before this court on behalf of the ministry of health and family welfare, department of AIDS control it has been averred that estimated HIV prevalence among FSW (female sex workers) is 4.60 per cent to 4.94 per cent, among MSM is 6.54 per cent to 7.23 per cent and IDU (injecting drug users) is 9.42 per cent to 10.30 per cent. The total population of MSM as in 2006 was estimated to be 25,00,000 and 10 per cent of them are at risk of HIV.”

Decision Sparks Widespread Outrage

The Court's decision sparked outrage amongst many Indians who feel that the Constitution of India has been “let down.” LGBT activists who witnessed the ruling broke down emotionally. Anjali Gopalan, a founder of the Naz Foundation said "This is taking many, many steps back. The Supreme Court has not just let down the LGBT community but the Constitution of India."

Arvind Narrain of the pro-LGBT rights Alternative Law Forum said “We’re deeply disappointed. We’ve been betrayed and this is a black day in the history justice. In essence the SC is saying that gays, lesbians, bisexuals are not citizens of this country. The court has tried to stem the tide of history with a judgment like this and turn the page back.

Additional Solicitor General Indira Jaisingh condemned the “medieval mindset” over this issue and directly criticized the court for “double standards:” “Historical opportunity to expand constitutional values has been lost.. When it is a question of human rights, why send it to the Parliament when the Supreme Court is itself the observer of human rights?

Outrage poured over in social media, which condemned the ruling. American actress Mia Farrow tweeted about the news, calling it “a very dark day for freedom and human rights.” LGBT rights activist Ashok Row Kavi, of the Hamsafar Trust said “The Delhi High Court judgment was not about public morality but rather constitutional morality and the SC decision today has thrown it all into a bin.” Kavi also added the decision would have a negative impact on India's image as a progressive nation: “India was being looked upon as a model for the former colonies. From Sri Lanka to Pakistan to Singapore to Hong Kong. This judgment will be shocking. The question is where is India going? India has gone back at least 30 years by this judgment.

It is unclear if India's governing coalition will take up the Court's challenge to amend the law, but public anger has stirred some Indian politicians. While the Home Minister Sushilkumar Shinde said the government will “abide by the verdict,” Jairam Ramesh, the cabinet minister for rural development, and member of the ruling Congress party called the decision “retrograde.” While Prime Minister Manmohan Singh had welcomed the 2009 verdict on decriminalizing homosexuality, the ruling coalition is currently under great pressure ahead of elections in 2014, with the Hindu nationalist Bharatiya Janata Party (BJP) winning several state elections and looking poised to dethrone the ruling Congress.

Members of Parliament from regional parties such as Shivanand Tiwari of the Janata Dal (United) and Derek O'Brien of the Trinamool Congress (TMC) expressed indignation at the Supreme Court reversing a “well-thought and scientific” decision made by the Delhi High Court. MP Sitaram Yechury of the Communist Party of India (Marxist) acknowledged that impetus now fell upon parliament to study the issue and act.

Threat To Health & Safety Of Gay Indians

LGBT life in India, with gay pride parades, film festivals and gay rights organisations arose slowly in the 1990s, and was given a major boost after the 2009 ruling that struck down Section 377. While LGBT events were easier to organize, the decision also meant gay Indians had protection from discrimination in employment and doctors could not refuse medical treatment. With homosexuality suddenly a crime again, the impact for millions of gay Indians could be severe Many gay Indians have been victims of police harassment.

Dr. Dilip Mathai, vice president of the AIDS Society of India said the ruling would make the fight against HIV/AIDS in India extremely difficult: "Our focus is to minimise new cases, but this verdict will make the act more clandestine and prevent doctors from reaching out to gay men who have HIV. The homosexual act will not disappear but the community seeking help will reduce drastically. Now while treating male patients, doctors cannot ask, 'Have you indulged in sex with a man,' and this will have a major impact on detecting new cases."

After the 2009 legalization verdict, more gay Indians had come to seek treatment, which AIDS activists were sure would decline again. The National AIDS Control Organisation and Human Rights Watch have identified Section 377 as a severe impediment to fighting the spread of the disease, citing the arrest and harassment of health workers and patients by police.



James Joseph Lawrence

A transparently desperate attempt by religion to claw back some of the power lost through education. As the world matures and discovers answers to questions only religion is arrogant enough to claim knowledge of expect to see even more drastic actions from the dying doctrines such as the bringing back of crucifixion, burning at the stake and witch-hunts.


It seems decidedly silly, after having gone through the transcript of the final judgement, to realize that the SC on THIS RARE OCCASION saw it fit to redeem the constitutional validity of the archaic Victorian Article 377 of the Constitution, taken away from it by the landmark judgement of New Delhi HC on 2009, and left amendment/removal of the article as the responsibility of the legislature. The Indian higher courts have made it practically a norm to deliver judgements challenging/reinterpreting laws, and often ORDER the formation of ordinances and bills for amendment. Keeping in mind the fact that it seems India will be back in the hands of a right-wing religio-fascist coalition in the upcoming general elections, it seems absurd to expect the legislature to change the law. Bravo India!

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