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India's supreme court upholds ban on gay sex Indian court overturns ruling decriminalising gay sex
(about 5 hours later)
India's supreme court has thrown out a 2009 ruling by a lower court that had decriminalised gay sex in a huge setback for gay rights in the world's largest democracy. Hundreds of people have taken to the streets across India in spontaneous protests following an unexpected supreme court decision reversing a previous judgment that had decriminalised gay sex in the country.
The top court stated that only India's parliament could change the law, by deleting a section of the penal code dating back to the 19th century, thus ruling that the Delhi high court had overstepped its powers with its decision four years ago. The decision means same-sex relations in India are once again subject to a 153-year-old law, passed under British rule, which defines them as "unnatural" and punishable by a potential 10-year jail sentence. The law was in effect repealed in 2009 by a landmark ruling by the high court of Delhi, the capital.
The move shocked gay rights activists, who had expected the court to rubber-stamp the earlier ruling. In recent years, India's supreme court has made progressive rulings on several rights issues. Activists had expected the supreme court simply to rubber-stamp the earlier ruling. The institution is known for its broadly progressive judgments, which often order politicians or officials to respect the rights of the poor, disadvantaged or marginalised communities.
"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. "It's a tremendous blow. It's unprecedented for a court with a long history of expanding rights to reduce dignity not protect it," said Gautham Bhan, a prominent activist.
"In our understanding, the supreme court has always sided with those who have no rights." Vikram Seth, the author, told the NDTV news channel: "Today is a great day for prejudice and inhumanity and a bad day for law and love. But law develops and love is resilient and prejudice will be beaten back.
Section 377 of India's penal code bans "sex against the order of nature", which is widely interpreted to mean homosexual sex, and can be punished with up to 10 years in jail. The rule dates back to the days of British colonial rule in India. "I wasn't a criminal yesterday but today I certainly am. And I propose to continue being a criminal. But I do not propose to ask the permission of their lordships when deciding who to love and whom to make love to."
"One would never expect the supreme court of India to make such a retrograde order, that is so against the trend internationally," said rights lawyer Colin Gonsalves. A coalition of conservative religious and social groups had petitioned the supreme court to overturn the earlier ruling. The two-judge bench decided that only India's parliament could change the law.
"This takes us back to the dark ages. This is a day of mourning for us in India." The petitioners included Baba Ramdev, a controversial Hindu holy man with a mass following who has fought a long legal battle to maintain the ban on gay sex.
India's law minister, Kapil Sibal, said he could not comment on the judgment and did not say if the government planned to seek an amendment to the law. At a press conference on Wednesday in Delhi, Ramdev invited "the gay community" to his yoga ashram, where he would "cure them of homosexuality", which he described as "unnatural, uncivilised, immoral, irreligious and abnormal" by "keeping them in a room with a heterosexual for a few days".
But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are coming up in May in largely socially conservative India, and the Hindu nationalist opposition is already gathering momentum. Kapil Sibal, India's law minister, said he could not comment on the judgment. The home minister, Sushil Kumar Shinde, said it was "not possible to legislate on anything now".
The 2009 ruling to exempt gay sex between consenting adults from the ban was the result of a case brought by the Naz Foundation, an Indian sexual rights organisation, which fought a legal battle for almost a decade. Few people expect the beleaguered Indian government, which faces a tough battle to keep power in general elections next spring, to risk limited political capital and sparse energy on a fight for gay rights.
The opposition Bharatiya Janata party, a Hindu nationalist party that supports "traditional" values, has won a series of recent victories in state elections at the expense of the traditionally liberal, secular Congress and, though Indian society is changing very rapidly, it remains profoundly conservative. Gay people say they face significant discrimination and police harassment, even if prosecutions under section 377, the law that has just been reinstated by the supreme court, are rare.
However, gay activists say there is increasing mobilisation and support. India's first gay pride march took place in the eastern city of Kolkata in 1999 and only about a dozen people attended. Now thousands gather every year and India's capital Delhi, its financial centre, Mumbai, the IT hub of Bangalore and other cities have started holding similar events. Gay film festivals and university campus groups have also sprung up.
"This is not the same community as 10 years ago. This is a real call to arms," said Bhan, the activist.
The original 2009 ruling to exempt gay sex between consenting adults from the ban was the result of a case brought by the Naz Foundation, an Indian sexual rights organisation that fought a legal battle for almost a decade.
The Indian home ministry had argued in favour of keeping section 377, saying that homosexuality spread HIV and therefore the ban could not be considered an infringement of human rights.
In the most recent hearings, however, Indian government officials argued that the ban was unjustified.
"Indian society prevalent before the enactment of the [ban] had a much greater tolerance for homosexuality than its British counterpart, which at that time was under the influence of Victorian morality and values in regard to family and the procreative nature of sex," the attorney general had argued.
After the Delhi high court ruling in its favour, a collective of mostly faith-based groups took an appeal to the supreme court.After the Delhi high court ruling in its favour, a collective of mostly faith-based groups took an appeal to the supreme court.
"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. Suresh Kumar Kaushal, a retired government officer and astrologer, who led the legal challenge, argued the "scriptures" were "against such behaviour".
"They had said that this unnatural sex is not permissible in all the religions of the world." "Even animals don't indulge in such activities," Kaushal's petition to the supreme court said.
There could be an appeal against Thursday's decision through a "curative petition", which would be heard by a panel of five judges. Meenakshi Ganguly, the south Asia director of Human Rights Watch, called Wednesday's ruling "a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination".
"The supreme court's ruling is a disappointing setback to human dignity and the basic rights to privacy and non-discrimination. But now the government should do what it should have done in the first place and seek to repeal section 377," Meenakshi Ganguly, the South Asia director of Human Rights Watch, said. "Now the government should … seek to repeal section 377 [and] should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead in ending such discrimination," Ganguly said.
"Now it should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead in ending such discrimination."
In an apparent protest against the ruling, suspected hackers posted the phrase "supremecourt is so gay" on Pepsi India's Twitter account on Wednesday. The post was deleted and Pepsi India said its account had been "compromised".
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