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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  • Nathanael

    Well, the Olympic Committee seems incapable of shame. They don’t seem to have changed much since they let Hitler open the Olympics. I don’t know why we can’t get governments to boycott, but I do know that the Olympic committee got hit with a huge amount of pressure, and despite this it doubled down on bigotry. (The big corporations behaved exactly as they usually do, evil.)

    And of course strongman Putin is incapable of shame; everyone knows he should have retired already, including the estimable Gorbachev, who said so. As a result, Russia is stuck until someone decides to make a bid to overthrow him. Which will probably happen relatively soon, but certanly not before February.

    India’s Parliament is another thing: it may be possible to pressure it, even with the BJP getting elected. Remind them that this law is a British colonial law and that Hinduism has a very different tradition. Remind that that this law is un-Hindu. There’s a possibility.

  • Nathanael

    Russia’s population is skewing older and older as young people leave if they can. Russia’s been suffering from a brain drain as this happens. You remember that support for gay rights seems to go up with every younger generation? Well, migration is meaning that this trend *hurts* the situation in Russia.

    Nothing like that is happening in India, which has relatively normal demographic patterns.

  • Jay

    Loved it, John. Thank you so much for writing about it. India and the LGBT Community around the World needs as much International attention as it can. For ours is a basic human right. It does not affect just one section of Humans – like Asian or Blacks or Latinos or Jews or a particular Nation… LGBT community is everywhere, and this support needs to universal.

  • http://adgitadiaries.com/ karmanot

    Damn right!

  • FLL

    Compare the news reports about the reaction of celebrities in India and celebrities in Russia concerning the anti-gay laws in their countries. Celebrities in India are uniformly condemning the India’s anti-gay law, whereas celebrities in Russia are just as uniformly supporting Russia’s anti-gay law. Indian and Russian society are so vastly different in this respect. India shows so much hope and promise, and Russia looks just awful.

  • http://www.rebeccamorn.com/mind BeccaM

    2006-09 is when we were there, too — and yes, although my wife and I did not advertise our relationship, on the occasions when it became known, we were rather well received.

    Still, we knew our legal situation could be precarious, so most of the time we let people assume we were either sisters or mother & daughter.

  • Ninja0980

    I saw someone mention John Roberts below.
    As Towleroad has noted,two of the Indian justices spefically talked about Scalia and THomas’s dissents in Lawrence Vs Texas as justification for their ruling.
    And as noted here,the ADF is helping defend laws in other countries that jail consenting adults.
    Bigots of a feather flock together,period.

  • Indigo

    I was there in 2006 and it seemed reasonably gay-friendly, even though the law had not yet been thrown out. This ruling must have been a fluke, we can only hope the legislature moves quickly. Meanwhile in Russia . . . nyet kulturny.

  • http://www.rebeccamorn.com/mind BeccaM

    As I remarked in the post, this isn’t 1953, 1993, or even 2003. A lot has changed in recent years, including a sea-change among increasing numbers of straight folks who are willing to say they can’t see any rational reason to discriminate against LGBT people.

  • http://www.rebeccamorn.com/mind BeccaM

    I’ve had people tell me I’m exaggerating and engaging in hyperbole when I tell them the anti-gay bigots’ real goal is to recriminalize being LGBT and to throw us all into prison or just flat out kill us all.

    Then something happens like is happening in Russia or India, and someone like Benjamin Bull makes it 100% crystal clear that’s exactly what the haters have in mind.

  • http://www.rebeccamorn.com/mind BeccaM

    So Mote It Be, Colin

  • pappyvet

    Lets stop marching for convention and start marching for freedom and convention will take care of itself.

    I am sick of fighting but will continue until I die. That there are those who would lie , brutalize , and attempt to bring about the ruination of another person’s path is unconscionable. They claimed that Jews sacrificed Christian babies and they claim gays molest children. It all comes from the same poisoned cauldron of hatred. And it’s universal among the tribes of planet Earth.

    Walk your path in peace , walk it in freedom. And allow us to do likewise.

    Bide within the Law you must, in perfect Love and perfect Trust.
    Live you must and let to live, fairly take and fairly give.
    Light of eye and soft of touch, speak you little, listen much.
    Honor the Old Ones in deed and name,
    let love and light be our guides again.

    These Eight words the Rede fulfill:

    “An Ye Harm None, Do What Ye Will”

  • Badgerite

    It would seem to me their priority ought to be treating their women better. Not using criminal laws to outlaw and go after gays. There are real sexual crimes going on in India. They don’t need to make some up out of behavior that harms no one.

  • quax

    India’s mainstream society seems to be much further along than Russia. The latter seems to actively embrace homophobia, very different picture emerging from India.

  • nicho

    And this has what to do with this story????

  • Hue-Man

    This ruling ranks as one of the worst LGBT developments in 2013 (the obvious first is the Russian “gay propaganda” laws and anti-gay violence and murder). I was surprised at the ruling, first, because the horrific stories of young women being gang-raped seemed to have intitiated a public discussion of formerly taboo subjects. Second, I thought that an international consensus had developed – except in the “Cooch’s” Virginia – that the state had no business in the bedrooms of consenting adults (a concept expressed more than three decades ago by Canadian PM Pierre Trudeau).

    Talking more openly about sex and issues of sexuality and enforcing the right to privacy are not “Western” values. The Supreme Court’s ruling opens the way for vindictive accusations and harrassment by police (and politicians) in a throwback to Victorian colonialism.

  • StraightGrandmother

    Well there you have it, out in the open. Alliance Defending (Hatred) Freedom wanting tor crimilize private sexual relations. I hope this is the spark that lights the fire of Freedom and the Fight against Discrimination in India. Sexual Minorities by definition a Minority, can’t secure their rights by themselves, they need straight people to Stand With Them.

  • Indigo

    I can easily visualize John Roberts smiling over this outrageous ruling from the Indian Supremes. And that’s got to be reversed. It’ll be an object lesson around the world as this plays itself out and reverses. What bothers me most about this is that although angry resistance from around the world towards the Supreme Court of India surfaced almost instantly, this same world dawdles quietly along while the anti-gay Olympics draw near at Solchi where homophobia foams at the mouth and violence lurks in the wings.

  • Truth
  • olandp

    It always takes a spark to set off an explosion. We will see what happens next. Wouldn’t it be fascinating if AFA got its wish and we were criminalized. What a tsunami that would create! AFA and Bryan Fischer and all of their cohorts would be buried for good. This ain’t 1970 any more.

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