India re-criminalizes homosexuality, proudly enters 19th century

In a devastating ruling for gay rights supporters, India’s Supreme Court on Wednesday, December, 11, 2013, overturned an earlier 2009 Delhi High Court ruling which had struck down India’s existing anti-sodomy law.

That earlier ruling had effectively decriminalized “homosexual acts” (i.e., gay sex of any kind).  The new ruling recriminalizes homosexuality in a country of one billion people.

In the Supreme Court Division Bench ruling, the court said it was up to the legislature to change the law, and not for the courts to overturn it. Civil rights groups blasted this rationale, because they feel — as do many others — that it’s up to the courts to serve as guarantors for people’s rights, and not an Indian legislature that is often as paralyzed as America’s Congress.

In short, after four years of it being legal to be gay, lesbian, or bisexual in India, their Supreme Court re-criminalized it. And the world’s largest democracy (by population) re-joins 76 other nations in legalized repression of lesbian, gay, bisexual and transgender (LGBT) people.

Protests in Mumbai following the Supreme Court reinstating India's sodomy law. (Photo by Kabi.)

Protests in Mumbai following the Supreme Court reinstating India’s sodomy law. (Photo by Kabi.)

Known as the infamous “Section 377 of the Indian Penal Code,” this law was passed during the British colonial era and was enacted in 1860 during the early part of the ‘British Raj’ period. (In fact, Britain inflicted this awfulness upon most of its Commonwealth colonial empire around this time, and used its law from India as the model.)

Section 377 reads as follows:

377. Unnatural offences: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

The sentence for this vaguely worded “crime”? Up to 10 years in prison, although judges can make that life in prison if they want. (By the way, Britain repealed the law for themselves in 1967.)

In their ruling, the two Justices said that the 2009 High Court decision relied too heavily on gay rights decisions in non-Indian jurisdictions, and claimed that petitions to demonstrate unwarranted discrimination against LGBT people were “laconic” (that is, they didn’t establish particulars of incidents):

“The writ petition filed by respondent no.1 (NGO) was singularly laconic inasmuch as except giving brief detail of the work being done by it for HIV prevention targeting MSM (men who have sex with men) community, it miserably failed to furnish the particulars of the incidents of discriminatory attitude exhibited by the State agencies towards sexual minorities and consequential denial of basic human rights to them,” the judges said.
(…)
It also said that the details of state-wise break up of estimated high risk MSM, total adult population, adult HIV prevalence and number of HIV infections as in 2009 which has been given are “wholly insufficient for recording a finding that homosexuals, gays, etc., are being subjected to discriminatory treatment either by State or its agencies or the society”.

Blithe irony of ‘tradition’…

Here’s an irony-challenged remark, which I initially thought was satire:

The flag of the British Raj in India (1858-1947)

The flag of the British Raj in India (1858-1947)

“The Supreme Court has upheld the century-old traditions of India, the court is not suppressing any citizen, instead it is understanding the beliefs and values of the large majority of the country,” Zafaryab Jilani, member of the All India Muslim Personal Law Board, told BBC Hindi.

First, India proudly boasts a culture going back thousands of years.  Something that’s only been around for a mere 152 years can hardly be called a ‘tradition.’

Second, and more importantly, India had no anti-sodomy law until 1860, when the British imposed this ‘tradition’ upon them.  So bully for India, restaking its claim to British colonial tradition and the notion of civil rights circa 1860, during the reign of Queen Victoria, Empress of India.

Can you smell the freedom?

Victoria, Empress of India.

India, you’ve made your mum proud.

An unjust anti-gay law once was overturned…

In 2009, the Delhi High Court struck down the British Raj-era law, saying that it “violated the fundamental right of life and liberty and the right to equality as guaranteed in the (Indian) Constitution.”

A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its 105-page order said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 (Right to Protection of Life and Personal Liberty), 14 (Right to Equality before Law) and 15 (Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of birth) of the Constitution.

“We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15,” the judgment said.

…and immediately challenged by anti-gay forces

As in America, France, and everywhere gay rights have seen advances, the forces of anti-gay bigotry — almost always religiously motivated — immediately challenged our victory in India.

Initially, Indian Attorney General G. E. Vahanvati expressed opposition to the High Court ruling to overturn Section 377, but later declined to file an appeal. As a result, it was primarily Christian and Muslim groups who advocated the Supreme Court review. (Hindus, Jains, and Sikhs may tend to be a little more open minded on this issue, but not totally, and there’s a twist, which I’ll get to in a moment.)

In a move that originally gave optimism to pro-gay right supporters, the Indian Supreme Court declined to issue a stay on the lower court’s ruling — which meant that for four years, it was legal to be ‘out’ as a gay person. No closet, and people were beginning to have relationships openly.

Moreover, police harassment of gay men especially was curtailed considerably, although by no means did it end entirely.

American anti-gay conservatives are, of course, happy with the new ruling

The AFA's Bryan Fischer.

The AFA’s Bryan Fischer.

America’s religious right praised India’s decision to make tens of millions of its citizens subhuman, and hope the same might happen in America, under a Republican president of course.

The Human Rights Campaign reports:

Frustrated with mounting losses at home, American conservatives also have rushed to praise the criminalization of same-sex relationships overseas, with American Family Radio host Bryan Fischer saying “What India’s Supreme court has done is entirely right” and “We need a Supreme Court which will do the same.”

India’s gay culture is unique

It bears mentioning that India’s approach to ‘gay identity’ is far different than what we’re used to here in the West.  Indeed, for a very long time, the word itself, “gay” or even “homosexual,” meant almost nothing in Indian culture.

India is still getting used to the idea of re-marrying

India is still getting used to the idea of re-marrying

For India, family is everything. In some families and parts of the country, arranged marriages are still the norm — although many of the younger generation are chafing at this. (Indian conservatives blame Bollywood, naturally.) Back in 2008-ish, when my wife and I were living in southern India, we were regaled once during a long taxi ride by a friendly but opinionated driver who insisted that the only sensible, lasting marriage was an arranged one.

As he put it:

“You marry for passion, what do you have when the passion is gone? Pfft! Nothing! You marry as your family wishes, and as your bride’s family wishes, you have two families standing behind that marriage. The love that comes only with time is far better than temporary passion!”

This family-first norm has led to a curious situation for gay people in India, even those who dare to marry “for love.” as it were. A gay man or lesbian woman in India will marry as their families expect them to — and then have same-sex lovers on the side. The men especially. In fact, if you were to walk into any random gay nightclub in, say, Delhi or Bangalore or Mumbai, a significant number of the men there will actually be married, some with kids.

The Wall Street Journal has a touching testimonial from a gay man in India.

India’s Supreme Court is also unique

Supreme Court building, New Delhi, India

Supreme Court building, New Delhi, India

India’s Supreme Court is a curious institution.

Originally numbering eight judges in all (one leading as Chief Justice), the Indian Parliament has gradually added judges to the bench of the decades since 1950 (Indian independence). Eleven in 1956, 14 in 1960, 18 in 1978, 26 in 1986, and finally 30 in 2008.

Normally, in dealing with cases, they sit in smaller Benches of two or three justices, called Division Benches. More serious cases might be heard by the larger Constitutional Bench, consisting of five justices or more.

In this case, the challenge against the 2009 Delhi High Court, was heard by a Division Bench of just two justices — Justice G.S. Singhvi and Justice S.J. Mukhopadhayay. (Side note: This was Justice Singhvi’s last ruling. He’s retiring, effective immediately. I can’t decide whether to snarl, “Coward!” or “Good riddance!”)

The fact this was just a Division Bench ruling — and given the nature of the case — an appeal to a higher bench is just about guaranteed.

LGBT citizens in India and gay rights supporters take to the streets

Protester in India (photo: NDTV screenshot)

Protester in India (photo: NDTV screenshot)

Meanwhile, LGBT people in India and supporters of gay rights did not just accept Wednesday’s Supreme Court decision. There were large protests in all the major cities after the ruling.

Because the Court had refrained from imposing a stay on the original High Court order, LGBT groups and supporters were shocked by Wednesday’s shock decision. In fact, according to the Times of India:

It was supposed to be a day of celebration, with screens and even balloons put up at offices of various LGBT groups in anticipation of a verdict that would help uphold gay rights. But the SC ruling re-criminalising homosexuality came as a shocker instead. It caused disbelief and deep disappointment across the country and sparked protests in New Delhi, Mumbai, Chennai, Kolkata, Lucknow and Chandigarh.

Or as the India Times (different media outlet) puts it, in the article titled “Gay Sex is Illegal: Supreme Court’s Dogmatic Verdict”:

Which century are we living in? 21st you say! But it seems the Supreme Court of India doesn’t agree with this logical fact. What else can explain the dogmatic and regressive verdict of the SC today in which they have upheld section 377 of the Indian Penal code that says that sexual relationship against the order of the nature is an offence. They also ruled that the courts should not intervene and that it was up to parliament to legislate on the issue. Wow, another wonderful responsibility on the able shoulders of our educated, socially sensitive and logical MPs-deciding how India’s citizen should lead their private lives!

Solicitor General Indira Jaising was more blunt, referring to the court’s position as a “medieval mindset.” From the India Times:

She questioned the “double standards” of the apex court in dealing with human rights issues after it quashed a 2009 Delhi high court verdict and made gay sex illegal and a punishable offence again under Section 377 IPC.

She raised question as to why the court put the ball in the court of legislature to decide on the issue when so many other matters and policies are being reviewed by it.

“Historical opportunity to expand constitutional values has been lost,” Jaising said, adding, “It is surprising that the court, which does judicial review on many issues, has put the ball in the court of Parliament to decide on homosexuality.”

“What surprises me is the double standards here. When it is a question of human rights, why send it to the Parliament when the Supreme Court is itself the observer of the human rights,” she commented after the verdict.

What happens now?

For the moment, it’s protests and expressions of outrage for the LGBT community and its supporters — both in India and throughout the world.

Hopefully, in the coming days and weeks, the rest of the gay-supporting world will hear about this terrible ruling and add our voices to the outrage of this attempt to shove gay, lesbian, bisexual and transgender people back into the closet, upon pain of arrest.

It’s also appalling that just two Supreme Court Justices (out of 30) heard the case — one of whom isn’t even going to stick around to defend his decision, but rather is retiring.

In the meantime, as with LGBT Russians — and the soon-to-be-endangered foreign visitors to Sochi, Russia next year — we can stand with our brothers and sisters in India, and refuse to be silenced, refuse to be shoved back into the closet.

The silence has already been broken online, the reaction to India’s colonial ruling was swift and harsh:

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Regarding a few of the tweets above, John has written before about India officialdom’s disinterest in prosecuting rapes against women, and the more general culture of sexism and misogyny in the country, which includes female infanticide, where young baby girls are murdered because it’s “better” to have a boy.

It’s interesting that the powers that be in India, including the typical “family values” crowd, are so pro-active when it comes to banning sex between consenting adults, yet they’re downright averse to dealing with the country’s real problems.


Published professional writer and poet, Becca had a three decade career in technical writing and consulting before selling off most of her possessions in 2006 to go live at an ashram in India for 3 years. She loves literature (especially science fiction), technology and science, progressive politics, cool electronic gadgets, and perfecting Hatch green chile recipes. Fortunately for this last, Becca and her wife currently live in New Mexico. @BeccaMorn

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