India High Court Revives 1860s Gay Sex Ban
(CN) - India's highest court recriminalized homosexuality Wednesday, striking down a landmark 2009 Delhi high court ruling that ended the colonial-era ban on gay sex in Asia's most populous democracy.
The Hindustan Times is reporting that a two-judge panel of the India Supreme Court found the Delhi court had exceeded its authority in overturning the law known as Section 377, which prohibits "carnal intercourse against the order of nature." The British passed the law in 1860, during its colonization of India.
In his 78-page opinion - which reads like a history textbook on a laundry list of sex acts both consensual and not - Justice G. S. Singhvi wrote that the Delhi high court lacked a compelling reason to overturn the law on equal treatment grounds.
"While reading down Section 377, the high court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 and this cannot be made sound basis for declaring that section unconstitutional," Singhvi wrote. (Parentheses in opinion.)
Singhvi also rejected the argument of the LGBT community in India that the law has been used to harass them - even to the point of torture in some cases.
"Respondent No.1 attacked Section 377 on the ground that it has been used to perpetrate harassment, blackmail and torture on certain persons, especially those belonging to the LGBT community," he wrote. "In our opinion, this treatment is neither mandated by the section nor condoned by it and the mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section. It might be a relevant factor for the legislature to consider while judging the desirability of amending Section 377."
The panel also criticized the Delhi court's reliance on cases outside of India, including the U.S. Supreme Court's holding in Lawrence v. Texas and extensive case-law developed in the European Union over the last 50 years.
"In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 violates the right to privacy, autonomy and dignity, the high court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature," Singhvi wrote.
In the end, the panel stressed it was only ruling on the constitutionality of Section 377 and indicated the Indian legislature had free rein to erase the law from the books if it chose to do so.
Some lawmakers suggested such a move may be possible, but LGBT advocates fear a large battle to undo 377 looms.
""Such a decision was totally unexpected from the top court, said Arvind Narayam, an attorney for the Alternative Law Forum gay rights group. It is a black day for the community. We are very angry about this regressive decision of the court."
He added: "It is highly embarrassing for the country because now we will be among the dirty dozens of the world."
Religious groups, primarily in the Christian and Muslim communities, hailed the decision. Dozens of them had joined in the now-successful drive to overturn the Delhi high court's decision before the supreme court.
"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, spokesperson for the conservative Vishwa Hindu Parishad.
Violating Section 377 carries a punishment of up to life in prison, though it is rarely prosecuted. But gay rights advocates claim that the law is frequently used by law enforcement and blackmailers alike to harass members of the LGBT community.
The India Times openly criticized the verdict, calling it a step backward toward colonial times.
"It lands a major blow to India's claim of being a country with a modern outlook, and the fact a law made by Britishers in the 1860s has been upheld in 2013 makes for a strange sentence," the Times reported.