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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  • Badgerite

    Worse yet. Huffington Post has an article today entitled, The Subhuman Conditions That Slaves and Child Laborers Face In India Are Worse Than You Imagined.
    The title pretty much says it all.

  • sane37

    The mistake is to assign or acknowledge emotion or morality to organizations of any sort.

    You may be sane. Your decisions may also be sane. That does not mean your company is sane. It cannot be.

  • lucyboots

    Before I retired I would have had input into this decision at my company and I’m perfectly sane. I think the “organization as immoral or insane” trope gives corporations and the people within them too much wiggle room to make bad decisions.

  • sane37

    The problem being that corporations are not and can never be sane.

  • lucyboots

    Between this decision and the uptick in violence against women, I cannot imagine any sane organization choosing to outsource code or customer support to India at this time. And it’s a major industry there.

  • pappyvet

    “These people will obviously be publicly degraded and dismissed and handed over to the court. After…they will be…taken into a concentration camp and in the camp they will be shot while escaping.” Heinrich Himmler That was then.

    “Homosexuality was supported in Nazi Germany, although modern gay rights activists CLAIM that an estimated 100,000 homosexual men were arrested for this CRIME.” conservapedia
    This is now.
    Stupidity and hatred knows no borders , has no time limit

  • Foref1970

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  • ReaperX

    In a way, there is an international law against this kind of thing. They violate multiple articles of the Universal Declaration of Human Rights.

    Article 1:

    “All human beings are born free and equal in dignity and rights.They are
    endowed with reason and conscience and should act towards one another
    in a spirit of brotherhood.”

    Article 2:

    “Everyone is entitled to all the rights and freedoms set forth in this
    Declaration, without distinction of any kind, such as race, colour, sex,
    language, religion, political or other opinion, national or social
    origin, property, birth or other status. ”

    Article 7:

    ” All are equal before the law and are entitled without any
    discrimination to equal protection of the law. All are entitled to
    equal protection against any discrimination in violation of this
    Declaration and against any incitement to such discrimination.”

    Article 12:

    “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.”

    Article 16:

    “(1) Men and women of full age, without any limitation due to
    race, nationality or religion, have the right to marry and to found a
    family. They are entitled to equal rights as to marriage, during
    marriage and at its dissolution.
    (2) Marriage shall be entered into only with the free and full consent of the intending spouses.
    (3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”

    Article 18:

    “Everyone has the right to freedom of thought, conscience and religion;
    this right includes freedom to change his religion or belief, and
    freedom, either alone or in community with others and in public or
    private, to manifest his religion or belief in teaching, practice,
    worship and observance.”

    Article 19:

    “Everyone has the right to freedom of opinion and expression;
    this right includes freedom to
    hold opinions without interference and
    to seek, receive and impart information and ideas through any media
    and regardless of frontiers.”

    Anti-glbtq law violate every one of these articles. They violate human dignity, the right to freedom and equal protection of the law, the right to privacy, to marry, the freedom of and from religion, and the right of self expression.

  • nicho

    Well, I guess I can cross “Visit India” off my bucket list. Oh, wait a minute, it wasn’t on there. Instead I had “Avoid India at all costs.”

  • TheOriginalLiz

    So many reasons not to go to India…

  • Silver_Witch

    What do we expect from a country that supports Dolphins as “non-human persons”, yet does nothing about the gang rape of women or the practice of immolating “bad wives”. Not much I am afraid.

  • Hue-Man

    Headline: “Brunei Told New Penal Code Violates Human Rights”

    “Under the Sharia penal code the tough revised laws criminalizes
    extra-marital affairs, consensual gay sex and also re-introduces the
    death penalty by stoning and amputations for thieves, ending a
    long-standing moratorium.” http://thediplomat.com/2014/01/brunei-told-new-penal-code-violates-human-rights/

  • http://liberawheeler.blogspot.com/ Elijah Jacob Shalis

    I wish there was an international law against putting glbtq people in jail for years. They should be taken before the ICC for such a ruling. Too bad the law doesn’t work that way.

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