Indian Supreme Court gay sex ban ‘a terrible set-back’
Judgement upholding sodomy laws sets a worry precedent
In 2009 when India made a great leap forward towards decriminalising sodomy, LGBT communities around the world celebrated. The historic judgement of the Delhi High Court, which found that the law criminalising sexual acts ‘against the order of nature’ contravened the fundamental rights enshrined in the Constitution of India acted as a real beacon of hope for LGBT communities across the world. .
Today’s ruling by the Supreme Court of India has has extinguished that beacon and is a devastating blow to the LGBT movement in India and across the world.
Many thought that in the absence of government opposition, the Supreme Court judges would uphold the rights of LGBT people as constitutionally protected, as their High Court colleagues had in 2009. There was a premature rush amongst activists to see India as a country which had effectively decriminalised, despite the limited jurisdiction of the Delhi court.
The Indian ruling sets a worrying and dangerous precedent for fights for equal rights across the world. The law prohibiting sodomy in India was the first of many colonial era anti-sodomy laws imposed by the British Empire. The Indian Penal Code of 1860, which contains the ban on sodomy, was the model for anti-sodomy laws throughout Britain’s imperial territories. A majority of the world’s laws that outlaw gay sex can trace a heritage back to the 1860 Act. To overturn it would have had powerful ramifications, symbolically and practically, in the many other countries where LGBT people struggle against criminalisation.
Instead the decision to uphold the sodomy laws is dispiriting for LGBT campaigners around the globe. Activists are currently awaiting the ruling of the Belize Courts, where a similar constitutional challenge was heard this summer. Previously quietly confident about a positive ruling, there are now real concerns about what the eventual decision may be.
But the fight in India is not over. The Naz Foundation and the Lawyers Collective, who brought the original challenge, have said they will apply for a review of the decision. With the Courts abdicating responsibility to politicians, what can we expect from India’s political classes: a protection of the rights of minorities or a capitulation (via inaction) to those who wish to deny choice, safety and dignity to many of their fellow citizens?
Just last month the Indian Prime Minister declined to attend the Commonwealth Heads of Government meeting in Sri Lanka, a session mired in controversy over human rights. Will that concern for the promotion of rights now be manifest on same sex equality or will the need to garner votes, with a general election looming next year, leave room only for silence? There is real concern that it will sadly be the latter.
There is undoubtedly a dynamic building in the country – pensions have been made available to eunuchs, a category ‘O’ for other has been added to passport applications for recording the sex of an applicant, there is an online gay bookstore, there are gay film festivals, many LGBT NGOs and Pride marches are attended by thousands.
The struggle for equal rights under the law is a vibrant indigenous movement with an authority and strength of its own. Our task now is to offer support and bring pressure to bear for their cause, for the dignity and rights of all people must be our cause too.
Dr Purna Sen, former Head of Human Rights at the Commonwealth and chair of the Kaleidoscope Trust, has condemned yesterday's decision:
The Supreme Court's ruling is a terrible setback for the struggle to secure equal rights for LGBT people, not just in India, but in many of the Commonwealth countries that still enforce colonial era restrictions on the liberties of LGBT people.
Dr. Sen, who was born in India and now works at the LSE in London, added: "The 2009 ruling that read the ban on same-sex relationships as being at odds with the Constitution acted as a real beacon for hope in the Commonwealth. Today's ruling, sadly, is a setback for India and sets a worrying precedent."