Indian Supreme Court upholds homosexuality ban

Photo: AFP

India's Supreme Court voted Wednesday to uphold a colonial-era law that criminalises homosexuality, cancelling a 2009 Delhi High Court ruling that the law infringed on an individual's fundamental rights.


India's Supreme Court voted Wednesday to uphold a colonial-era law that criminalises homosexuality, finding the law to be constitutionally valid and shattering activist hopes for protecting gay rights in the world's most populous democracy.

The decision reversed a 2009 Delhi High Court ruling that found that the penal code’s section 377, which prohibits people from engaging in "carnal acts against the order of nature", infringed the fundamental rights of Indians.

"It is up to parliament to legislate on this issue," said Supreme Court Judge G.S. Singhvi after the ruling.

The decision has shocked the gay community in a country that has gradually seen the emergence of an LGBT (lesbian, gay, bisexual and transgender) rights movement and the development of a gay cultural scene in urban areas.

As the decision was delivered on Wednesday, some gay rights activists and lawyers burst into tears and were embraced by their colleagues outside the Supreme Court.

Reporting from New Delhi, FRANCE 24’s Mandakini Gahlot said the verdict had surprised India’s gay rights community.

“This morning’s verdict was almost entirely unexpected,” said Gahlot. “Members of the gay rights community did expect the apex court to take a much more positive stand on the issue. It has left a lot of people shocked and deeply disappointed. They believe this has set back India’s gay rights movement by a decade – if not more.”

The 2009 Delhi High Court’s 2009 decision was strongly opposed by religious groups. In a rare alliance, representatives of different religious affiliations – including the All India Muslim Law Board, Christian groups and Hindu spiritual leaders – joined forces to launch the appeal at the Supreme Court.

"Such a decision was totally unexpected from the top court. It is a black day for the community," said Arvind Narayan, a lawyer of the Alternative Law Forum gay rights group, in comments to reporters.

"We are very angry about this regressive decision of the court," Narayan said.

Gay rights community exploring ‘all options’

“For the gay rights community, it was a symbolic fight because this particular law has rarely, if ever, been used to prosecute two adults for consensual sex. But it has been used by the police to harass homosexuals,” said Gahlot.

Speaking to reporters outside the Supreme Court, T. Tandon, a lawyer for the Naz Foundation, a non-profit group that works with HIV-AIDS patients, said the group would “explore all options and probably look into the option of a review petition," before adding, "The movement of gay rights is so much stronger now. It is not 2001, it is 2013. You can't have a decision like this.".

The Naz Foundation and other groups could seek a review or a so-called "curative petition" to overturn the Supreme Court ruling and is likely to mobilise the media and public opinion.

“The gay rights community is India is well organized and they’re protesting even as we speak,” said Gahlot. “They have maintained that this morning’s judgment is a body blow to people’s right to equality, privacy and dignity.”

India's Law Minister Kapil Sibal said the government could raise the matter in parliament. The government of Prime Minister Manmohan Singh was seen to broadly support the 2009 ruling, and some ministers said they opposed Wednesday's rollback.

But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are due by next May and the socially conservative Hindu nationalist opposition is already gathering momentum.

Still taboo

A spokesman for the Delhi Catholic Archdiocese said before the verdict that the church was ready to accept any decision reached by the Supreme Court.

"Though we did not welcome the (2009) decision of the High Court, we did not object to it. If there is a decision like that from the Supreme Court, we will not object to it either," Dominic Emmanuel told the NDTV network.

"The church has a very clear stand on people with different sexual orientations,” he said. “Though they are different from ... normal people, they should be respected, accepted and there should be no signs of discrimination against them."

Homosexuality has long been a taboo subject in India, where many still regard it as a mental illness.

In recent years, however, the country's gay community has worked to raise its profile, organising gay pride marches in cities such as New Delhi and Mumbai that have created awareness and encouraged many to come out of the closet.

(FRANCE 24 with AFP, AP and REUTERS )


Daily newsletterReceive essential international news every morning