India’s Supreme Court stands by ruling re-criminalizing homosexuality

Back in December, India made it a crime to be gay.  There have been some updates, not all together good.

Specifically, a Division Bench ruling from India’s Supreme Court reinstated Section 377 of its penal code, a British Victorian / Raj-era law from the mid 1800s that outlawed homosexuality, making it a felony offense and subject to fines and prison sentences of up to ten years to life.

As I wrote back then:

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.

Well, on Tuesday, 28 January, the Indian Supreme Court in what appears to be another Division Bench ruling, has declined to review the ban they reimposed. The two judges who heard the case, Justices H. L. Dattu and S. J. Mukhopadhaya, rejected the petition from India’s government’s lawyers.

One detail it is worth noting, which took me some time to track down and verify in the writing of this post, is that while Justice Dattu is new on this particular case, the other Justice, S. J. Mukhopadhavya was one of the authors of December’s Division Bench ruling. In addition, the second Justice in December, G. S. Singhvi, retired immediately after the case.

Not knowing all the ins and outs of the Indian judicial system, I nevertheless take this to mean that this request for a ruling review is not unlike it would work here in the States.  Judge or Federal Judge or even the Supreme Court issues a ruling, and the plaintiffs or defendants can essentially file a petition that says, “Please reconsider what you just decided.”

Justices Dattu and Mukhopadhaya said no, forget it.

“We have gone through the review petitions and the connected papers. We see no reason to interfere with the order impugned. The review petitions are, accordingly, dismissed,” a bench of Justices H L Dattu and S J Mukhopadhaya said, dismissing a bunch of eight petitions in chamber proceedings.

At this point, there remain only a few options for LGBT citizens of India and their supporters:

Two options are now available before the government and the LGBT community to have the law overturned: the legal remedy of filing a curative petition in the Supreme Court, arguing the question of the constitutionality of IPC Section 377; and seeking the parliamentary route to amend the law.

What they’re saying is what was reported back in December, that the only ways out are either for the Indian legislature to pass a new law repealing Section 377 of the Indian Penal Code, or for the case to be appealed to a higher section of the Supreme Court. Such as request is termed a “Curative Petition” — which is generally reviewed by the three most senior Justices of the Supreme Court, who then if they decide to take the case can invite additional Justices to sit on a ‘Constitutional Bench’ to hear it.

What’s especially sad is this ruling does not even reflect the wishes of the Indian government or its leaders, who did not want the original 2009 ruling which declared Section 377 unconstitutional to be challenged. As has happened in many nations, including here in America, the challenges are from a determined fundamentalist conservative minority which simply hates gay people:

Few thought the legal challenge – launched by conservatives including Muslim and Christian religious associations, a rightwing politician and a retired government official-turned astrologist – against the 2009 decision to succeed. The supreme court is known for broadly progressive judgments that often order politicians or officials to respect the rights of the poor, disadvantaged or marginalised.

Nevertheless, voices have risen in opposition, including among the Indian government:

Sonia Gandhi, the president of the ruling Congress party, called on MPs “to address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India” in the wake of the judgment.

We’ll see what happens.


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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