Homosexuality is a crime, says Supreme Court

Activists participate in a protest against the Supreme Court verdict against homosexuality in Mumbai yesterday.

Agencies/New Delhi

The Supreme Court yesterday reinstated a ban on gay sex in the world’s largest democracy, following a four-year period of decriminalisation that had helped bring homosexuality into the open in the socially conservative country.

In 2009 the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits “carnal intercourse against the order of nature with any man, woman or animal” and lifted the ban for consenting adults.

But a Supreme Court bench, headed by G S Singhvi on his last day before retirement, threw out that decision, saying only parliament could change Section 377 of the penal code, widely interpreted to refer to homosexual sex. Violation of the law can be punished with up to 10 years in jail.

The move shocked rights activists around the world, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, the Supreme Court has made progressive rulings on several issues such as prisoners’ rights and child labour.

“It’s a black day for us,” said Anjali Gopalan, the executive director of the Naz Foundation, a Delhi-based NGO that works on sexual health and led the consortium of advocacy groups defending the 2009 judgment.

“I feel exhausted right now, thinking that we have been set back by 100 years.”

US actress Mia Farrow described the decision as “a very dark day for freedom and human rights,” in a post on Twitter.

Federal Law Minister Kapil Sibal said the government could raise the matter in parliament. The government of Prime Minister Manmohan Singh was seen to broadly support the 2009 ruling, and some ministers said they opposed yesterday’s rollback.

But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are due by next May and the socially conservative nationalist opposition is already gathering momentum. 

India’s gay culture has opened up in recent years, although the country remains overwhelmingly conservative and sex outside marriage, even among heterosexual couples, is largely frowned upon. India’s first gay pride march took place in the eastern city of Kolkata in 1999 and only around a dozen people attended.

Yet, since 2008, India’s capital Delhi, its financial centre, Mumbai, the IT hub of Bangalore and other cities have started holding much larger events. Gay film festivals and university campus groups have also sprung up.

The 2009 judgment had allowed people to organise such events far more openly by protecting gay people from being fired because of their sexuality, and has meant that doctors could no longer refuse to treat homosexuals, activists say.

“The vocabulary surrounding us was about pornography, but it became about dignity,” said Gautam Bhan, a 33-year-old consultant for a research centre in Bangalore, who came out when he was 18.

Gay rights activists have also long argued that the current law reflects British colonial standards of morality and not Indian traditions. India’s trans-gender community, known as the Hijras, have played a role in its society for hundreds of years.

It is common to see heterosexual men holding hands in India, but displays of affection between men and women are discouraged.

The 2009 ruling was the result of a case brought by the Naz Foundation, which fought a legal battle for almost a decade.  After the ruling, a collective of mostly faith-based groups took an appeal to the Supreme Court.

The Naz Foundation and other groups could now seek a review or a so-called “curative petition” to overturn the Supreme Court’s ruling, but these options rarely succeed, said Arvind Narrain, one of the lawyers representing the advocacy groups.

The activists hope to have more success by using the media and protests to put public pressure on the court for a U-turn.

“This is a terrible setback for the LGBT community. It will lead to greater harassment by police and force people underground, reducing their access to healthcare,” activist Ashok Row Kavi said.

Religious groups who opposed the 2009 repeal hailed the reinstatement of the law, which is rarely invoked in practice.

“We know that homosexuality is against nature,” general secretary of the All India Muslim Personal Law Board, Abdul Raheem Quraishi, said. “It goes against all its laws and it is what led to the spread of HIV/Aids.”

“The Supreme Court has honoured the sentiments of Hindus, Muslims, Sikhs, Christians and those who believe in morality,” said Baba Ramdev, a controversial but popular Hindu spiritual leader.

“Today they are talking about men having sexual relationships with men, women with women; tomorrow they will talk of sexual relationships with animals.”

The UN Development Programme on HIV/Aids had argued in 2008 that decriminalising homosexuality would help India to combat the spread of HIV/Aids which affects an estimated 2.5mn people here.

Gay rights protesters held a demonstration yesterday in Delhi and some Indians changed their Facebook profile pictures to show two men kissing in a sign of their support for homosexuality.

In an apparent protest against the ruling, suspected hackers posted the phrase “supremecourt is so gay” on Pepsi India’s Twitter account yesterday. The post was deleted and Pepsi India said its account had been “compromised.”