India’s Stonewall: How recriminalizing homosexuality inspired a revolution

I wrote yesterday about the ruling from the Indian Supreme Court reinstating that nation’s anti-sodomy law, which had been overturned by a lower court in 2009.

In the ensuing 24 hours, the country of India, and allies across the world, exploded in anger.

We may very well be witnessing India’s Stonewall Uprising (the famous 1969 riots in NYC that gave birth to the modern gay rights movement). Except this time, it wasn’t just drag queen who kicked open the paddy wagon doors – it was the entire world.

First some quick background from my story yesterday:

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.

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.

Worldwide uproar over India’s Supreme Court decision

Protester in India (photo: NDTV screenshot)

Protester in India (photo: NDTV screenshot)

Not that long ago, a terrible anti-gay foreign high court ruling would be barely newsworthy outside of India, and the only people complaining about it would be the gays. But not this time. The response from gay and trans people, and our allies inside India and around the world, has been astounding.

Here’s a quick round-up of some of the reaction:

The BBC reports The Times of India, The Asian Age, The Indian Express, and The Hindu as all expressing opposition to the ruling:

Media in India are expressing outrage over the Supreme Court decision to uphold a law that criminalises homosexuality.
(…)
Most papers feel the court has taken a “tragic decision” by leaving the final call with parliamentarians. ‘Retrograde attitude’ The Times of India says the court’s decision “to re-impose the 19th century ban on homosexuality is not just tragic; it’s ironic too”.
(…)
“The horrendous but impractical implication of the judicial U-turn is that they (homosexual community in India) have to go back into the closet,” the paper adds.

More details and the full article at the BBC link.

Al Jazeera also weighed in:

A deafening uproar has greeted the top Indian court’s verdict making gay sex illegal, with activists, media and social networks condemning the decision and saying that the clock had been turned back to colonial times.
(…)
The latest judgment stunned even the federal government. Several ministers openly criticised the verdict and the federal home minister Sushil Kumar Shinde said they would try bringing in a law that would negate the court ruling.

India Congress President Sonia Candhi (photo: Creative Commons)

India Congress Party President Sonia Candhi (photo: Creative Commons)

Speaking of ministers, Congress Party President Sonia Gandhi, in a report on Bloomberg, expressed disappointment with the ruling, adding:

“I hope that Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by this judgment,” Gandhi, 67, said in the statement. The ruling “removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in the constitution.”

Vice President of the Indian National Congress, Rahul Gandhi (Sonia’s son) issued this statement (from IBN Live):

“My personal view is that these are matters left to individuals. I agree with (Delhi) high court’s view on decriminalising gay sex,” said the Congress leader in a brief press conference.”

Unfortunately, the pessimistic consensus is that the Indian Parliament won’t act. From the NY Times:

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. With the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.

India’s Bollywood stars express disappointment, too

A lot of folks here in the US may not realize how much India adores its Bollywood superstars (I used to live in India). It’s incredibly culturally significant that they’re speaking out in opposition to this ruling. One of them, Aamir Khan said, “I am most disappointed with this judgement. It feels very intolerant and violative of basic human rights. It’s a shame.”

Meanwhile, filmmaker Onir (just the one name — and he’s gay) tweeted, “A dark day in the history of judiciary and human rights in India. I am angry by the Supreme Court ruling on IPC 377.” (As reported on IBN Live, yet another India news outlet.)

Many other Bollywood stars also expressed their dismay, usually via social media. For example, Anushka Sharma (actress) said, “It’s frightening how someone else decides how when and who you should love — basically freedom of choice isn’t legal anymore.”

Buzzfeed has comments from a number of additional Bollywood stars.

Some top Indian corporate brands spoke out as well

A number of India’s top brands also spoke out against the court ruling.  Here are a few tweets from the companies, you can find more over at Buzzfeed:

 

 

International civil rights advocates are outraged

Outrage over the ruling isn’t limited to India. The UN High Commissioner for Human Rights Navi Pillay expressed her dismay as well. (She is, by the way, a South African of Indian Tamil origin.) As reported in the Chicago Tribune:

A decision by the Indian Supreme Court to reinstate a ban on gay sex represents a “significant step backwards for India” and violates international law, United Nations human rights chief Navi Pillay said on Thursday, suggesting the case be reheard.
(…)
“Criminalizing private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified,” Pillay said in a statement issued in Geneva.

“Yesterday’s Supreme Court decision in this case represents a significant step backwards for India and a blow for human rights.”

The US-based Human Rights Campaign also issued a statement (more at the link):

The Human Rights Campaign, the United States’ largest lesbian, gay, bisexual, and transgender (LGBT) civil rights organization condemns a ruling by India’s Supreme Court overturning a lower court’s decision that decriminalized same-sex relationships. In 2009 the Delhi High Court ruled Section 377 of the Indian Penal Code was unconstitutional because it denied rights to a certain set of citizens. Section 377 included a penalty for “unnatural offenses” which criminalizes same-sex relationships for up to 10 years of jail time and could be extended to life imprisonment.  The court’s ruling “recriminalizes love” in India and makes the world’s largest democracy one of 77 countries around that globe that criminalizes homosexuality.  This is a deeply disturbing step backward, as LGBT equality is advancing around the world.

“It is incomprehensible that a court of law would take the side of discrimination against LGBT citizens,” said HRC Vice President and Chief Foundation Officer Jeff Krehely.  “Criminalizing LGBT relationships leads to dangerous situations, not just for committed couples, but also for LGBT youth, who today received a deeply harmful message that they are less than equal. We call on fair-minded people around the world to show solidarity with India’s LGBT community at this critical moment.”

Human Rights Watch issued this statement:

The Indian government should immediately seek to decriminalize adult consensual same-sex relations, Human Rights Watch said. Currently, same-sex relations are subject to section 377 of the Indian Penal Code, which punishes “carnal intercourse against the order of nature” with up to life in prison. The Supreme Court upheld the constitutionality of section 377 and ruled that the Delhi High Court decision was “legally unsustainable.” It said it was now up to the legislature “to consider the desirability and propriety of deleting Section 377” of the penal code.

“The Supreme Court’s ruling is a deeply disappointing setback for basic rights to privacy, equality, and non-discrimination,” said Graeme Reid, director of the LGBT rights program at Human Rights Watch. “Now the government should do what it should have done in the first place and decriminalize consensual same-sex relations between adults.”

Of course, the bigots are pleased as punch with India’s reinstatement of a Victorian-era law

Besides the American Family Association’s Bryan Fischer commenting, “What India’s Supreme court has done is entirely right,” and adding. “we need a Supreme Court which will do the same,” other anti-gay groups — including at least one considered ‘mainstream’ — have issued rather bigoted statements of their own.

For example, the Catholic Online’s headline reads, “Indian Supreme Court upholds morals, reinstates anti-deviance law.” Subtitle, “Law bans homosexual acts, bestiality.”

Really classy, Catholic.org.

I’d excerpt more, but honestly, if you want to read it, follow the link. Me, I think I need a tumbler full of scotch to wash away the horrific anti-gay bigotry and rank homophobia in the Catholic Online’s article.

Meanwhile, Alliance Defending Freedom (ADF), a radical right legal group in the US, applauded the ruling. In an interview, ADF’s executive director Benjamin Bull had this to say:

“When given the same choice the Supreme Court of the United States had in Lawrence vs. Texas, the Indian Court did the right thing,” says Bull, which was choose to “protect society at large rather than give in to a vocal minority of homosexual advocates.

It’s not hopeless for gay, lesbian, bisexual and transgender Indian citizens

Despite the New York Times pessimism regarding possible legislative action, I actually think there’s more hope than hopelessness in this situation.

Reactions in India aren’t “Ho hum, oh well, guess there’s nothing to be done.” LGBT rights activists in India and worldwide are livid and energized. Even the Indian media and a number of very powerful politicians are speaking out in opposition to the injustice of forcing uncounted thousands of Indian citizens back into the closet.

Ten years ago, I believe we would have seen the former reaction — much as American media and politicians reacted to the passage of Don’t Ask, Don’t Tell (DADT) and the Defense of Marriage Act (DOMA). Those few who thought those laws were awful, discriminatory, and irrationally anti-gay legislation soon shut up about it. Some leaders who claimed to be our allies even had the gall to suggest those laws were good for us.

India is a deeply conservative nation by habit, and they do not change quickly for much of anything. The fact so many there think this Supreme Court ruling was wrong is very encouraging.


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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