In a move widely criticized by human rights groups, India’s Supreme Court voted to reinstate a law banning gay sex last Wednesday. The vote reverses a landmark 2009 decision by the Delhi High Court that found Section 377 of India’s penal code, which bans “carnal intercourse against the order of nature,” unconstitutional.
Section 377 is an outdated holdover of British colonial law that dates back to 1861. That the British have long since repealed their own sodomy laws and are to begin marrying LGBTQ couples in March makes India’s support of the old law even more puzzling.
Violation of Section 377 is punishable by a fine and up to 10 years in prison. Although convictions are rare, the law has largely been used by police and other officials to blackmail and threaten members of the LGBTQ community. Its reimplementation ignores evidence that the law perpetuates harassment and threatens health and safety of LGBTQ citizens, and that it actively discriminates against sexual minorities.
In its 2009 ruling, the Delhi High Court decriminalized sex between two consenting adults, regardless of their gender, finding that Section 377 violated constitutional guarantees of privacy and equality. The Supreme Court disagreed and reversed the ruling. In what many see as an effort to shirk responsibility for the disgraceful decision, the court released statements that Parliament was “free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the attorney general.”
This gesture was clearly disingenuous, given India’s fractured parliament, growing conservatism, and upcoming elections that make controversial political moves from parliament members unlikely.
The Supreme Court’s decision shocked many and sparked protests by gay rights supporters across the country. Most had assumed, considering the increase in visibility and acceptance of the LGBTQ community in the years following the 2009 ruling, that the Delhi High Court’s ruling would be upheld.
After 2009, many LGBTQ citizens felt supported by the unexpected show of solidarity from their government. According to Harish Iyer, an equal rights activist based in Mumbai, there was more than a 100 percent increase in people wanting to come out of the closet after the ruling. LGBTQ activists, who say that being gay was rarely discussed in Indian families before the decision, credit the ruling with helping to rid the subject of its taboo nature. Pride parades erupted even in small cities across the country, and Bollywood took note, including more LGBTQ characters than ever in movies and television shows. It seemed that India was moving forward.
“What are you doing now? Pushing them right back in [the closet]?” Iyer asks of the Indian government. “It’s not going to work. People who are out will be louder and stronger.”
There is hope that a strengthened LGBTQ community will be more equipped to take on rights violations than ever, but they will need help.
The Naz Foundation, a group working to prevent the spread of HIV who originally brought the issue to the Delhi High Court in 2001, has promised to redouble its efforts to fight the reinstatement of Section 377. Visit www.nazindia.org/advocacy to learn more and donate today. People cannot afford to move backwards in the fight for human rights.
– Sarah Morrison