The Supreme Court in India has dealt a major blow to the country’s gay and lesbian community, reimposing a British colonial-era ban on gay sex that was ruled unconstitutional four years ago.
The verdict overturns a 2009 Delhi High Court judgment that ruled that Section 377 of the Indian criminal code, which bans “carnal intercourse against the order of nature” and has been held to mean homosexual sex, was a violation of the fundamental constitutional rights of gays and lesbians.
The Supreme Court’s ruling on Wednesday found the Delhi High Court judgment was “constitutionally unsustainable”, and that it is up to India’s parliament to decide if it wanted to decriminalise gay sex.
Civil rights attorneys and gay rights activists expressed shock and anger at the ruling, which will again make gay sexual encounters between consenting adults a criminal offence, as it was treated before 2009.
“It’s totally retrograde, totally shocking,” Colin Gonsalves, a prominent human rights attorney, said of the decision. “The role of the Supreme Court is to ensure fundamental rights, and it’s an abdication of the role of the Supreme Court.”
Indira Jaisingh, the government’s additional solicitor general, said the court’s decision reflects “the medieval mindset of the people of this country”.
While fully-fledged criminal prosecutions under Section 377 were rare even before 2009, activists said the prohibition on gay sex was frequently used to harass or blackmail gays, contributing to a climate of fear within the community.
Attorney Anand Grover, one of the lawyers who has led the legal battle to have Section 377 struck from the rule books, said activists will apply for a review of the Supreme Court verdict.
“We have legal avenues open to us and we will pursue them,” he said. “I’m confident we will win ultimately. We have a just cause, and we will use every means necessary to be sure we get our rights.”
Ms Jaisingh criticised Wednesday’s ruling as “an abdication of duty” by a Supreme Court that has aggressively insisted on its right to review – and overturn – all types of government policies, even when the matters have no constitutional issue at stake.
On a question of fundamental human rights, of which the court should be “the final interpreter”, she said, “they prefer to put the ball back in the court of parliament.”
“It’s an erroneous interpretation of the constitution of India: every human being has [the] right to live their life the way they want to live it,” Ms Jaisingh said. “It is not only disappointing but it is almost contradictory to the constitution of India.”
India’s gay community fought in court for more than a decade to overturn the British colonial-era Section 377, led by the Naz Foundation, an organisation that promotes safe sex practices among gay men to reduce their risk of contracting HIV/Aids.
But India’s Congress-led government has been reluctant to take a firm stand on the issue. The health ministry, which has extensive programmes to combat HIV/Aids, supported gay groups, arguing that the ban on same sex lovemaking hindered efforts to reach out to gay men at high risk of contracting HIV. But the conservative interior ministry argued that overturning the ban would threaten the social order.
However, after the 2009 Delhi High Court judgment, seen then as a landmark in the struggle for gay rights, the Congress-led government told the Supreme Court that it did not see any problem in the verdict, despite the clamour from religious groups – including Hindus, Muslims and Christians – against the ruling.
Gay rights activists said there was little prospect of parliament striking down the colonial-era law, especially in the months ahead of Parliamentary elections, but vowed to continue their legal battle through the court process. “The government operates on the basis of majority opinion,” said Ashok Rao Kavi, a prominent gay rights activist based in Mumbai. “We are demanding our rights from the state. It’s the duty of the state to treat all people equally.”
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