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India turns back the clock, restores anti-gay law

Supreme Court of India
Supreme Court of India

“The Supreme Court of India made gay sex illegal again, taking the country and its people back a hundred years.”

That was an LGBT rights supporter’s  response to today’s ruling in India’s Supreme Court, which overturned a lower court decision in 2009 that had left India without an enforceable law against homosexual activity.

The ruling means that repeal of India’s colonial-era law, Section 377,   will have to come from the parliament, not from the courts.

The Supreme Court simply stated that the law “does not suffer from any constitutional infirmity.”

Opponents of the law, led by the New Delhi-based anti-AIDS Naz Foundation, had argued in court that the law  against “carnal acts against the order of nature” was:

  • “Detrimental to people’s lives and an impediment to public health due to its direct impact on the lives of homosexuals; …
  • “Serves as a weapon for police abuse in the form of detention, questioning, extortion, harassment, forced sex, payment of hush money; …
  • “Perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that
  • “As a result of that it drives gay men and MSM [men who have sex with men] and sexual minorities generally underground which cripples HIV/AIDS prevention methods.”

The law dates back to 1861, when India was part of the British Empire.

Muslim, Hindu and Christian groups appealed the 2009 New Delhi High Court ruling overturning the law as a violation of fundamental human rights, arguing that the law was needed to uphold traditional values.

In its ruling, the Supreme Court stated that the law does not need to be overturned for “the mere fact that the section is misused by police authorities and others.”

The ruling stated that the High Court had “overlooked that a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted” under the law.

The Supreme Court said it was arbitrary and irrational to make a distinction between “those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature.”

It said that opponents of the law “miserably failed to furnish the particulars of [claimed] incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them [or] the particulars of the cases involving harassment and assault from public and public authorities to sexual minorities.”

Opponents of Section 377 said they will ask for a rehearing of the case before the court — a long-shot strategy — but will also push for corrective action in parliament.

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Written by Colin Stewart

Colin Stewart is a 45-year journalism veteran living in Southern California. After his retirement from paid newspaper work in 2011, he launched Erasing 76 Crimes and helped with the Spirit of 76 campaign that assembled a multi-national team of 26 LGBTI rights activists to advocate for change during the International AIDS Conference in Washington, D.C., in July 2012. He is the president of the St. Paul’s Foundation for International Reconciliation, which supports LGBTQ+ rights advocacy journalism, including the Erasing 76 Crimes news site and the African Human Rights Media Network. Contact him via Twitter @76crimes or by email at info@76crimes.com. Mailing address: 21 Marseille, Laguna Niguel CA 92677 USA.

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