India court keeps anti-gay law; next hope, parliament

The Supreme Court of India today refused to reconsider its Dec. 11 ruling that reinstated Section 377, the country’s colonial-era law against homosexual activity.

The decision means that efforts to change Section 377 through legislation will take priority, unless opponents of the law succeed through one remaining avenue for judicial appeal, which seems unlikely.

Sonia Gandhi,  leader of the United Progressive Alliance, urged parliament to amend Section 377 shortly after the Dec. 11 ruling.

But that won’t be easy.  As a recent commentary in The New Indian Express stated: “That is exactly what the government wants to avoid” because of opposition from “a large majority of the people in India, … religious organisations and some political parties.”

LGBT rights group Orinam stated:

Regardless of the decision of the Court, our activism asserting the right to live without fear and discrimination, and indeed to live with pride, will remain undimmed.

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If anything, we are strengthened and heartened by the wide range of support we have seen and felt. The media, mainstream political parties, ordinary persons, families of LGBTQ persons, mental health professionals, teachers, academics, artists have all stood with us in favour of the constitutional guarantee of dignity to the LGBTQ community.

For more information on the petition, which sought a review of the court’s ruling on the case of Koushal v. Naz Foundation, see:

• Orinam’s discussion of the rejection. “This decision is particularly egregious as the Court’s decision in Koushal was replete with errors apparent on the face of the record. The Court disregarded arguments made by the parties, did not consider key findings of the Delhi High Court judgment, and was seemingly blind to the voluminous material on record that incontrovertibly established rape, torture, discrimination, and harassment of LGBTQ persons as a direct and inevitable consequence of Section 377.”

• 

  Redeeming the Supreme Court (Law Resource India) “The legal response to homosexuality in India through Section 377 has been on the statute books for over 150 years. Though attitudes towards homosexuality have undergone significant changes, it would only be fair to acknowledge that it is nonetheless a deeply divisive issue in India. … In Koushal, the judgment authored by Justice Singhvi does not address the legal issues that were at the heart of the constitutional challenges to Section 377. There are the poorly argued sections on equality under Article 14 and the right to life under Article 21 while completely ignoring the arguments on the protection against discrimination under Article 15.”

• Indian Supreme Court Refuses To Reconsider Sodomy Ban (BuzzFeed) “There is one last option for advocates trying to get the Supreme Court to change its mind. This is called a curative petition, a motion in which they senior judges of the full Supreme Court are asked to intervene in cases where a ruling violates basic rights. But some activists said privately before Tuesday’s ruling that if the review petitions were rejected, they held little hope that a curative petition would succeed.”
• Supreme Court refuses to review verdict on gay sex (thehindu.com) “a major set back to gay rights activists.”