Gay sex illegal again, rules Indian court

Indian rights activists react to the Supreme Court decision to uphold a law banning gay sex.
Indian rights activists react to the Supreme Court decision to uphold a law banning gay sex.
AP

Sex between two same-sex partners is again illegal in India.

The Supreme Court reversed a four year old decision by the nation’s High Court that decriminalized consensual same-sex activity between adults. Amnesty International India described the news as a “black day for freedom in India.”

The decision is a major setback for gay rights activists in India.

“I feel so exhausted right now thinking we are being set back by 100 years. . . . I think it’s pathetic and sad,” said Naz Foundation founder Anjali Gopalan.

The law, known as Section 377, dates back to colonial era rule in India. “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished,” reads the law. It goes on to outline a punishment that can extend as long as life in prison.

The Naz Foundation, an NGO working on HIV/AIDS and sexual health in India, launched a case against the law in 2001. Despite the court’s initial refusal to listen to the case, the Naz Foundation won an appeal at the Supreme Court level for the lower High Court to consider the case. A ruling delivered in July 2009  agreed that the law violated the rights of Indians outlined in the constitution and struck down the law.

An appeal was soon launched by faith-based, religious and private groups. An attempt to appeal to the Indian government failed. However, the Supreme Court took up the case in February of 2012. Lawyers argued that gay sex is ‘highly immoral.”

Attorney-General GE Vahanwati voiced the government’s opposition to the case and support for the High Court ruling in March 2012.

“The government of India does not find any error in the judgment of the High Court and accepts the correctness of the same,” said Vahanwati. “ The introduction of Section 377 was not a reflection of the existing Indian values and traditions; rather it was imposed upon the Indian society by the colonizers due to their moral values.”

Today’s decision to strike down a lower court ruling was considered a victory for supporters of the law. The ruling affirmed the case made by religious groups that gay sex is ‘unnatural, championed Ejaz Maqbool, a lawyer representing religious groups who support the law, following the announcement.

“A few thousand people who claim to be homosexuals cannot dictate rules for the majority; they cannot decide what is right and what is wrong,” said Prakash Sharma, spokesman for the conservative Hindu group, Vishwa Hindu Parishad.

Rights groups immediately decried the decision by the Supreme Court, citing backwards progress on the rights of gay Indians.

“The Supreme Court’s ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination,” said Human Rights Watch. “But now the government should do what it should have done in the first place and seek to repeal section 377.”

The Naz Foundation already said it plans to challenge the ruling. According to a report from Indian news source DNA, the foundation will file a petition for a review of the Supreme Court decision. Protests are also being planned to demonstrate against the ruling.

“We’ve faced the terror of not knowing who we are at the age of 15,” said activist Gautam Bhan of Voices Behind 377, “We can deal with this too,”

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Tom Murphy

Tom Murphy is a New Hampshire-based reporter for Humanosphere. Before joining Humanosphere, Tom founded and edited the aid blog A View From the Cave. His work has appeared in Foreign Policy, the Huffington Post, the Guardian, GlobalPost and Christian Science Monitor. He tweets at @viewfromthecave. Contact him at tmurphy[at]humanosphere.org.