Court Restores India’s Ban on Gay Sex

[frigidmagi]

NYTimes

Gay sex became illegal again in India Wednesday after the Indian Supreme Court ruled that a colonial-era law banning gay sex should not have been struck down.

The ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law that forbids “carnal intercourse against the order of nature with man, woman or animal” was unconstitutional. The 19th century law, passed by the British, makes gay sex punishable by 10 years in prison. Only Parliament can change that law, the Supreme Court ruled.

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

Anjali Gopalan, founder of a charity that sued to overturn the 1861 law, said she was “shocked” by the ruling.

“This is taking many, many steps back. The Supreme Court has not just let down the L.G.B.T. community,” Ms. Gopalan said, referring to gays, lesbians, bisexuals and transgenders, “but the constitution of India.”

S.Q.R. Ilyas, a member of the All India Muslim Personal Law Board, which had filed a petition in the case asking that the lower court ruling be reversed, praised Wednesday’s ruling.

“These relationships are unethical as well as unnatural,” Dr. Ilyas said. “They create problems in society, both moral and social. This is a sin as far as Islam is concerned.”

India has a rich history of eunuchs and transgender people who serve critical roles in important social functions and whose blessings are eagerly sought. Transgender people often approach cars sitting at traffic lights here and ask for money, and many Indians – fearing a powerful curse if they refuse – hand over small bills.

Despite this history, Indians are in the main deeply conservative about issues of sexuality and personal morality. Surveys show wide disapproval of homosexuality, and Indians on average still have few sexual partners throughout their lives.

The pressure to marry, have children and conform to traditional notions of family and caste can be overwhelming in many communities. Indian weddings are famously raucous and communal affairs. So gays are often forced to live double lives.

Asian nations typically take a more restrictive view toward gay sex than western countries. In China, gay sex is not explicitly outlawed but people can get arrested under ill-defined laws like licentiousness.

The law banning gay sex is rarely enforced in India, but the police sometimes use it to bully and intimidate gays. In rare cases, health charities that hand out condoms to gays to help prevent the spread of HIV/AIDS have had their work interrupted because such efforts are technically illegal under the law.

But inspired by gay rights efforts elsewhere, activists in India have in recent years sought to assert their rights, holding gay rights marches and pushing for greater legal rights and recognition.

As part of this effort, the Naz Foundation, a gay-rights advocacy group, filed suit in 2001 challenging the 1861 law, known here as Section 377. After years of wrangling, the group won a remarkable victory in 2009 when the Delhi High Court ruled that the law violated constitutional guarantees for equality, privacy and freedom of expression.

India’s judges have a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, shuttered much of the country’s iron ore mining industry to cut down on corruption, and ruled that politicians facing criminal charges cannot seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

But legalizing gay sex was one step too far for India’s top judges, and in a rare instance of judicial modesty they deferred the matter to India’s legislators.

India’s central government had offered conflicting arguments during the many years of wrangling around the case. But Indira Jaisigh, an Additional Solicitor General of India, said in a televised interview that she was surprised the court decided to punt on the underlying legal case.

“They have never been deterred by the argument that the government, the legislature or the executive has not done this or that on other policy matters,” she said ruefully. The government has often unsuccessfully argued to the Supreme Court that it should defer to Parliament in important matters. “Why only when it is the question of human rights?”

I find this incredibly disappointing but not entirely unexpected. The plain fact is India remains very rural and under educated, their universities are great don't get me wrong but their primary schools are somewhat underdeveloped. We're going to need more time, which frankly isn't what I want to say and I am certain that is not what many of you want to hear.

[LadyTevar]

Well, it was nice while it lasted.
Did any get married during the time it was legal? What will be their status now?

[frigidmagi]

Marriage wasn't made legal. It was just that being gay stopped being illegal.

[Lys]

I always found it interesting that former French colonies have a greater tendency to have no bans on homosexuality than former British colonies. More so after adjusting for Islam, but even without. Then you have a number of former British colonies that only ban male homosexuality, even though buggery is as English as tea and crumpets.

[Cynical Cat]

France has historically been one of the most progressive European countries when it comes to gay rights. It's been legal since 1791 and remained legal when the Ancient Regime was restored. It's hardly surprising that areas strongly affected by its cultural legacy would be more liberal than those of the nation that gave us Victorian morals.

[Lys]

Yeah, that's true. Heck a lot of modern-day English language readers of The Count of Monte Cristo still don't know that Danglars' daughter Eugenie is a lesbian who runs off with her music teacher, because it was censored out in the 1846 translation and they're still publishing it. France is also the country that spawned La Maupin and le Chevelier d'Eon. It is, however, notable homosexuality was not actually made illegal in Britain until the late 19th century. The Liberals in that period had a religious moralizing bent and kept trying to pass a law banning it, while the Conservatives in Parliament kept shooting it down, arguing that it was contrary to traditional British liberty. Perhaps ironically, it was an MP with a French name - Labouchère - who wound up finally getting a gross indecency rider added to a bill in 1885. The national buggery rate failed to budge.