Indian Supreme Court refuses to strike down anti-homosexuality laws

In a major setback to gay activists, the Supreme Court on Wednesday held that homosexuality or “unnatural” sex between two consenting adults under Section 377 Indian Penal Code would be an offence and this provision did not suffer from any constitutional infirmity. I am appalled, disgusted and feel for the millions of Indian LGBTQ. India’s laws against homosexuality (section 377) were written by British colonizers in 1860 (pdf) and no parliament since has bothered to strike them down. They are not enforced with vigour, or at all, perhaps, but the very presence of such a law silences, intimidates and oppresses the people of India, and in fact, anyone visiting as well. The LGBTQ in India suffer from oppression and silencing for reasons that go well beyond the presence of a law, but changing laws is often the first step in societal change in India. The Delhi High Court in 2009 did the right thing (and politicians a favour) by ruling the law unconstitutional. The supreme court had other ideas, apparently. The court argues (very disingenuously) that they find nothing nothing wrong with a law that the Delhi court found violated Article 14 of India’s constitution, and that the onus is on the legislature to repeal the provision. Given the idiocy of defending laws that clearly discriminate between different types of sexual activity between consenting adults, who is to blame here?

  • The British: Thanks for imposing your morals on India, no one asked you to.
  • The Congress-led ruling coalition, which initially opposed the Delhi verdict, then supported it, then mounted a tepid defence at the supreme court (like Obama on gay marriage in the US). They had the opportunity to strike the law down legislatively in 2009, and could have used their majority to do so at any point in time, they did not.
  • Indian fundamentalists. The Christians, Muslims and Hindu fundamentalists launched a united front against the ruling and argued in court together.
  • Civic organizations like Prayas, who seem to think that sex between consenting adults has something do with protecting children.
  • The Delhi Commission for protecting children? This is a governmental organization tasked with preventing child abuse. Again, they seem to think that sex between consenting adults and abuse of children are somehow connected. Sexualized abuse of children in India is terribly common and primarily perpetrated by family members,
  • The Supreme Court in India, which by law should not always be deferential to legislative process, especially when the constitution is concerned. It is well within the court’s jurisdiction to look at laws enacted before the Indian constitution and void them if they violate the constitution. The fact that they decided in this case to pretend to “see nothing wrong” indicates that they made up their mind and found a rationalization.

rainbowWhat next? India’s election is in 4 months, nothing will happen then. Given the congress coalition’s recent weakness, and the BJP’s resurgence, India may be looking at a right wing coalition led by the BJP coming to power. Given their close ties and identification with Hindu fundamentalism, and their social conservatism, the law is likely to stand for a while longer. It will oppress millions.

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