India’s Supreme Court has overturned a lower court ruling and effectively re-criminalized same-sex sexual activity. While undoubtedly a setback for gay rights, we can use this as an opportunity to rid India of its anti-gay penalties entirely.
India’s Section 377 of the Penal Code, which bans carnal acts “against the order of nature” and proscribed (though rarely used) up to life in prison for those who violated the ban, was struck down in July 2009 after the Delhi High Court found that it was being used to unfairly persecute India’s LGBT population and breached the country’s constitutional commitments to civil rights.
Religious groups quickly announced they were appealing the decision, arguing that the government has a legitimate interest in encouraging only procreative sex inside of marriage. Specifically, religious groups also argued that the ban technically applies to straight and same-sex couples alike and therefore isn’t discriminatory.
This week, India’s Supreme Court ruled in favor of religious groups and overturned the Delhi High Court ruling, saying that the Delhi High Court did not have the authority to overturn the ban as, it contends, only lawmakers can change this aspect of the Penal Code.
According to the court’s judgement:
Since 1950 the Legislature has chosen not to amend the law or revisit it. This shows that Parliament, which is indisputably the representative body of the people of India has not thought it proper to delete the provision. Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law.
What’s more, the court also argued that the Delhi High Court had erred in finding the ban discriminatory, saying that the plaintiffs had failed to prove that the ban was being used to discriminatory effect and that, as such, the ban is constitutional:
[Persons] who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification. What Section 377 does is merely to define the particular offence and prescribe punishment for the same which can be awarded if in the trial conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty.
The ruling is a body blow for gay rights in the country. Kavita Krishnan, a women’s rights activist from Delhi, told the BBC that the ruling is an “embarrassment.” She is quoted as saying:
In a modern democracy, we expect the Supreme Court to protect the rights of the marginalised and underprivileged, whether they are women, children, poor or sexual minorities.
What if tomorrow religious groups decide that inter-caste or inter-religious marriages are against the moral values of our society, then would the court make, amend or uphold laws accordingly?
There is also a certain irony in this ruling. As the New York Times notes, India’s courts have a level of power and the ability to change laws that would be unthinkable in the United States — yet determining that a penal code provision is unconstitutional, a quite narrow ruling that said nothing overtly positive about gay people other than recognizing basic personal freedoms, is being treated as judicial activism and a step too far.
Arvind Narrain, a prominent lawyer from Bangalore who worked on overturning 377, has said that his legal team is currently scrutinizing the ruling with a mind to returning to the court with an appeal.
There are some other positive aspects to this story, too. The Indian government, after giving conflicting testimony to the courts but eventually settling on an official position against the law, seems at least prepared to look into its options for challenging the Supreme Court order.
Congress President Sonia Gandhi is joined by the Finance Minister P Chidambaram and Law and Justice Minister Kapil Sibal in issuing strong statements against 377.
Justice Minister Sibal is quoted as saying:
The [Government] is considering all options to restore the High Court verdict on #377. We must decriminalise adult consensual relationships.”
Other lawmakers have backed the ruling and said they will vociferously oppose any action to retire 377, but this is where gay rights supporters have been given a unique opportunity.
Take Action: The next few weeks will be critical in ensuring that India’s government does not let momentum slip away and that lawmakers act to repeal 337. Sign this Care2 Petition to tell India’s Government and lawmakers they need to act now!
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