Main | Wednesday, December 11, 2013

INDIA: Supreme Court Recriminalizes Homosexuality In Shocking Decision, Reverses 2009 Landmark Ruling

This is beyond shocking. Homosexuality is once again a crime in India after the Supreme Court today reversed a 2009 ruling by the Delhi High Court and declared that only the national legislature can legalize gay sex.

Via Reuters:
India's Supreme Court on Wednesday reinstated a ban on gay sex in the world's largest democracy, following a four-year period of decriminalization that had helped bring homosexuality into the open in the socially conservative country. In 2009 the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits "carnal intercourse against the order of nature with any man, woman or animal" and lifted the ban for consenting adults. The Supreme Court threw out that decision, saying only parliament could change Section 377 of the penal code, widely interpreted to refer to homosexual sex. Violation of the law can be punished with up to 10 years in jail. The move shocked rights activists around the world, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, India's Supreme Court has made progressive rulings on several issues such as prisoners' rights and child labor.
Via Al Jazeera:
The court on Wednesday held that an homosexual act was punishable under Section 377 of the Indian penal code, reports quoting the judgement said. A bench of justice G S Singhvi and justice SJ Mukhopadhaya delivered the verdict after hearing petitions of anti-gay right activists besides social and religious organisations against the earlier Delhi high court order of 2009. The top court came down heavily on the federal government describing its approach as “casual” and said it was concerned that the Indian parliament had not thought fit to discuss the issue. The federal government had welcomed the ruling of the earlier Delhi High court on the grounds that the section 377 of the Indian penal code was a relic of the British colonial law and that Indian society was much more tolerant towards homosexuality, reports said. The Delhi high court on July 2, 2009, had ruled that sex between two consenting adults in private would not be an offence.
Via the India Times:
The verdict has been shocking on many levels. Firstly, landing a major blow to India's claim of being a country with a modern outlook, the fact a law made by Britishers in the 1860's has been upheld in 2013 makes for a strange sentence. Secondly, with many countries now equating gay equality with the rights for same-sex marriage, the Supreme Court ruling puts India back in the company of most nations in the Islamic world and many African countries which criminalise homosexuality. The only country in South Asia where gay sex is now legal is Nepal.

"It is highly embarrassing for the country because now we will be among the dirty dozens of the world," said Narayan, the lawyer from the Alternative Law Forum.In most western countries, the debate about same-sex couples has shifted on to their rights to marry. More than a dozen countries now allow homosexuals to wed. Thirdly, it is a blow to people's right to equality. Just because gays have made a different lifestyle choice, they do not deserve to be put in jail. They are also entitled to their privacy and dignity. They do face widespread discrimination and ignorance from a largely homophobic Indian society. And with this verdict, the law has also deserted them.

Fourthly, by putting the ball in the Parliament's court, the Supreme Court has now granted power to decide how India's citizens should lead their private lives, in the hands of those MPs who are yet to become sensitive even to the gender equality issue.

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