Indian Supreme Court Strikes Down "Indefensible" Gay Sex Ban

Like so many places that the British colonized and where Christian missionaries took their anti-gay animus, India was subjected to the imposition of criminal penalties for same sex relations.  Also, like many other former colonies, India clung to anti-gay laws - many African countries are still doing so - bizarrely claiming that homosexuality was imported from the west when in fact it was anti-gay hate and religious bigotry that was imported.  Sadly, legislators in many such countries lacked the courage to challenge such idiocy and it has been left to the courts to end the anti-gay legacy of colonial rule.  Now, the Supreme Court of India has struck down that country's ban on homosexuality that dates back 150 years.  In a unanimous ruling, the Court deemed that archaic law irrational and indefensible.  Here are highlights from the New York Times on this most welcomed development:

India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, a groundbreaking victory for gay rights that buried one of the most glaring vestiges of India’s colonial past.

After weeks of deliberation by the court and decades of struggle by gay Indians, Chief Justice Dipak Misra said the law was “irrational, indefensible and manifestly arbitrary.”

News of the decision instantly shot around India. On the steps of an iconic courthouse in Bangalore, people danced, kissed and hugged tightly, eyes closed. In Mumbai, India’s pulsating commercial capital, human rights activists showered themselves in a blizzard of confetti.

The justices eagerly went further than simply decriminalizing gay sex. From now on, they ruled, gay Indians are to be accorded all the protections of the Constitution.

“This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch. With restrictions on gay rights toppling in country after country, the ruling in India, the world’s second-most-populous nation, may encourage still more nations to act, she said.

Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing — changing deeply held mind-sets another.

Much of this may also be true in other parts of the world. But what made India stand out from most — at least until Thursday — was its application of an anachronistic law drawn up by British colonizers during the Victorian era and kept on the books for 150 years.

The law banned sex considered “against the order of nature,” and thousands of people were prosecuted under it. But for gays in India, prison was only one of the risks. The law was often used as a cudgel to intimidate, blackmail and abuse.

In their ruling, the justices said homosexuality was “natural.” They also said that the Indian Constitution was not a “collection of mere dead letters,” and that it should evolve with time.

The court did not rule that the law being challenged, known as Section 377, should be excised altogether. It can still be used, it said, in cases of bestiality, for instance. But it can no longer be applied to consensual gay sex.

The justices seemed moved by the stories they heard from the petitioners about harassment, blackmail, abuse and persecution.  “History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said.

India has a complicated record on gay issues. Its dominant religion, Hinduism, is actually quite permissive of same-sex love. Centuries-old Hindu temples depict erotic encounters between members of the same sex, and in some Hindu myths, men become pregnant. In others, transgender people are given special status and praised for being loyal.

But that culture of tolerance changed drastically under British rule. India was intensely colonized during the height of the Victorian era, when the British Empire was at its peak and the social mores in England were austere.

In the 1860s, the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex.

Not surprisingly, those most be moaning and opposing the ruling were "Christian" groups, some likely bankrolled by American Christofascists who continue to export anti-gay hatred around the world. 

Homophobia - A Residue of British Colonial Rule

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At times I want to pull my hair out over the ignorance of those in Africa, India and now Singapore who claim that the acceptance of homosexuality is a western trait that threatens indigenous social mores.Why don't this homophobes have "I'm an ignorant cretin" tabooed on their foreheads?  The truth is that homophobia is a western import that traces back to British colonial rule.  As noted in treatise, The Origins and Roles of Same-Sex Relations in Human Societies, opposition to same sex relations was low across the globe until the arrival of Christian missionaries.  Now, American Christofascists are working diligently (with corrupt politicians and parasitic churchmen) to follow in the footsteps of their equally bigoted ancestors and dupe local populations into embracing homophobia.  A piece in the Washington Post traces all of this back to British colonial rule.  Here are highlights:

During the past half-century, many countries have eliminated criminal laws against what are variously called “homosexual offences”, “sodomy,” “unnatural acts” or  other terms used to describe consensual sexual relations between people (often specifically men) of the same sex.

Yet, the decriminalization of homosexual conduct is an uneven process and several countries are moving in the opposite direction. 

Among such criminalization cases, a common narrative is that acceptance and tolerance of homosexuality is a foreign, or alien, Western imposition on indigenous cultures.  For example, Zimbabwean President Robert Mugabe has called homosexuality an invention of the West that will “disturb the African moral fabric.”

Here stands one of the biggest ironies.  The idea that the so-called tolerance towards homosexuality somehow sprang from a western source doesn’t hold.  As our research shows, this narrative is not only wrong-headed but the opposite of the historical facts.  Instead, for many countries, including some of those mentioned above, criminalization laws were based on British imperial legal instruments, like the Indian Penal Code Section 377A, introduced and imposed on these countries by Britain when they were colonized.

We investigated whether and why there is variation in laws regulating and punishing homosexual conduct around the world.  Looking at a variety of data on 185 countries, we found that former British colonies are much more likely to have laws that criminalize homosexual conduct than former colonies of other European powers, or than other states in general. 

It seems that when the British Empire was introducing legal systems around the world, one of the laws they included was the law against sodomy, which was not decriminalized in England and Wales until 1967. By this time, most of the “Winds of Change” wave of decolonization had left former colonies independent of changes in British legislation.  By contrast, after the French Revolution, the French Empire decriminalized sodomy between consenting adults, and spread this Enlightenment legacy among its colonies.

Highlighting the colonial origin of anti-gay legislation is an important way to counter the narrative that tolerance of homosexuality is a neo-colonial imposition. . . . Another strategy is to publicize the numerous examples of accepted homosexual practices and relations in various pre-colonial African cultures.

 What is sad is that the original British colonials played upon the ignorance of native populations in introducing anti-gay laws.  Now, American Christofascists are engaging in the same toxic conduct.   As for leaders who claim to be rejecting foreign influence by enacting anti-gay laws, all they ultimately prove are they they are ignorant asses.  Are you listen, Mr. Putin?

India's Ruling Congress Party Slams Supreme Court for Banning Gay Sex

The fallout continues in India over the Supreme Court of India's bowing to religious extremists and reinstating section 377 of the Indian Penal Code that hearkens back to the 1860's and British colonial rule.  Now, the ruling Congress Party has condemned the Court's action and is urging Parliament to fix the problem that was reactivated by the Court's ruling.  The choice before the Indian Parliament is one of whether India is to be a modern nation or a backward dominated by religious based ignorance and bigotry.  The New York Times has details.  Here are excerpts:

NEW DELHI — India's ruling party on Thursday slammed the Supreme Court for reinstating a ban on gay sex, taking an unexpectedly bold stance ahead of elections in the religiously conservative nation. 

The court on Wednesday overturned a 2009 ruling by Delhi's High Court, which had lifted a ban on gay sex between consenting adults that dated back to the nineteenth century. The top court said only parliament could change the penal code. 

The court's shock move triggered protests in cities across India on Wednesday as fear spread that the gay community was effectively being outlawed. The ruling was condemned internationally. 

"The High Court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution," said Sonia Gandhi, the head of the Nehru-Gandhi dynasty that leads the ruling Congress party, in a rare public statement. 

Finance Minister P. Chidambaram and Law Minister Kapil Sibal also voiced dismay.  "To say in this day and age that LGBT (lesbian, gay, bisexual and transgender)rights should not be recognized is extremely regressive and extremely disappointing," Chidambaram told reporters. 

Gay rights activists had not expected the Congress-led coalition government to wade in on the issue . . . 

The opposition Bharatiya Janata Party ducked mounting pressure to make its stance known.

"This is not a political issue. It is a social issue," said BJP spokesperson Meenakshi Lekhi. 

India's parliament could now vote to change or remove section 377 of the penal code, which prohibits "carnal intercourse against the order of nature", a phrase widely interpreted to refer to homosexual sex. Violation of the law can be punished with up to 10 years in jail. 

Gandhi urged parliament to take up the matter in her statement. Chidambaram suggested that, given the notoriously slow pace of India's lawmakers, the government should instead file a "curative petition", a kind of appeal under which the case is reviewed by a five-judge panel. 

Gay rights activists have long argued that the current law reflects British colonial standards of morality and not Indian traditions. 

The choice is embracing modernity or ignorance and religious based hatred.

Times of India Column Slams Anti-Gay Ruling of Supreme Court of India

Many in India want that nation to be recognized as a modern, increasingly progressive and dynamic nation.  Apparently, the Supreme Court feels otherwise and has issued a ruling that seeks to take India back to the mindset of the 1860's and British colonial rule.  That's about the only conclusion that one can reach based on the Court's ruling that struck down a lower court decision and reinstated Section 377 (unnatural offenses) of the Indian Penal Code, the 1860's statute passed by the British, that criminalized gay sex.  Now, India will be much like areas of Southwest Virginia that want to attract progressive new businesses, yet are so backwards that no one wants to locate there. Cheap wages are not always all that factors into corporate relocation and expansion decisions. While backward religious extremists may be applauding the Court's decision, many are not and a piece in the Times of India takes the Court and those who appealed the lower court ruling to task.  Here are some excerpts:

Here’s a pop quiz. Which century are we living in? 21st you say! But it seems the Supreme Court of India doesn’t agree with this logical fact. What else can explain the dogmatic and regressive verdict of the SC today in which they have upheld section 377 of the Indian Penal code that says that sexual relationship against the order of the nature is an offence. They also ruled that the courts should not intervene and that it was up to parliament to legislate on the issue. 

The 2009 verdict was hailed as a landmark judgment which saw ostracized gay and transgender communities erupt in celebration. But, as is the case with our country, a lot of people had a problem with this as it disrupted their way of looking at things. In a rare alliance, anti-gay right activists ,representatives of different religious groups , including the All India Muslim Law Board, Utkal Christian Council and Apostolic Churches Alliance , other Christian and church groups, and Hindu spiritual leaders, had come together to challenge the high court's order. They were offended and therefore challenged the judgment. Not to be left behind, one of the many custodians of Indian culture Senior BJP leader BP Singhal challenged the high court verdict in the Supreme Court. All of them appealed the ruling to the Supreme Court, which concluded hearings in March last year on the subject.

They had a problem because.. Lots of reasons. The BJP leader BP Singhal felt such acts (gay sex) are illegal, immoral and against the ethos of Indian culture. Dominic Emmanuel, spokesman of the Delhi Catholic Archdiocese said, "The church has a very clear stand on people with different sexual orientations. They are different from ... normal people. Other Leaders of India's Muslim and Christian communities argued that all homosexual acts were "unnatural".The general secretary of the All India Muslim Personal Law Board, Abdul Raheem Quraishi said, "We know that homosexuality is against nature.It goes against all its laws and it is what led to the spread of HIV/AIDS."   

So the Supreme Court gave in to THIS? Sadly, yes. Justice G.S. Singhvi and Justice S.J. Mukhopadhayay have clearly disappointed many with their tame and, judging by Twitter reactions, highly unpopular decision. They said that there was no constitutional room for change in Section 377 of the Indian Penal Code. The bench, however, put the ball in Parliament's court to take a decision on the controversial issue, saying it is for the legislature to debate and decide on the matter. 

Our Opinion

The verdict has been shocking on many levels.

Firstly, landing a major blow to India's claim of being a country with a modern outlook, the fact a law made by Britishers in the 1860's has been upheld in 2013 makes for a strange sentence.

Secondly, with many countries now equating gay equality with the rights for same-sex marriage, the Supreme Court ruling puts India back in the company of most nations in the Islamic world and many African countries which criminalise homosexuality. The only country in South Asia where gay sex is now legal is Nepal.

"It is highly embarrassing for the country because now we will be among the dirty dozens of the world," said Narayan, the lawyer from the Alternative Law Forum.

Thirdly, it is a blow to people's right to equality. Just because gays have made a different lifestyle choice, they do not deserve to be put in jail. They are also entitled to their privacy and dignity. They do face widespread discrimination and ignorance from a largely homophobic Indian society. And with this verdict, the law has also deserted them.

Fourthly, by putting the ball in the Parliament's court, the Supreme Court has now granted power to decide how India's citizens should lead their private lives, in the hands of those MPs who are yet to become sensitive even to the gender equality issue.

I have many clients of Indian descent and I have looked forward to visiting India some day.  Not now, however.  India is now on the list of nations that I will boycott until such time as anti-gay laws are repealed.