In a stunning setback to LGBT rights in the world's second most populous nation and largest democracy, India's Supreme Court today reinstated an 1861 law banning gay sex. The decision reverses a landmark 2009 ruling by the Delhi High Court that found the colonial-era law unconstitutional.
Gay sex is once again a criminal offense in India, punishable by up to ten years in prison. It's estimated that between 14% and 17% of the world's LGB population lives in India.
The 2009 ruling stated that a section of the country's penal code that forbids "carnal intercourse against the order of nature with man, woman, or animal" did not apply to same-sex couples and other consenting adults. But the Supreme Court rejected that decision, stating that the law remains constitutional and only Parliament can change it. According to the New York Times, that won't happen anytime soon.
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."
Religious groups, which lobbied the court heavily, were jubilant. "There is no space for homosexuality in our social setup," said Mohammad Abdul Rahim Quraishi of the All India Muslim Personal Law Board. "It is a sin, it is a heinous crime." K. Radhakrishnan of Trust God Ministries, an anti-gay Christian group, called homosexuality an import from the West that "has polluted the minds of young Indians."
The Supreme Court's verdict sent shock waves throughout the country and around the world. According to the Wall Street Journal, most observers expected the 2009 decision -- which was widely seen as a critical first step in empowering India's largely closeted LGBT community -- to be upheld.
"I think this is a dark day for the constitution," said Gautam Bhan, gay rights activist and Delhi-based urban planner who came to India's Supreme Court on Wednesday expecting to celebrate. "Never before has a Supreme Court taken away an expansion of rights to Indian citizens and reversed a move towards inclusion. We will continue or fight inside and outside the courts."
A coalition of Indian LGBT groups released a joint statement today slamming the Supreme Court decision as an "unconscionable blow to the dignity of LGBT persons. "It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence, and harassment," the group writes. "In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold."
The India Times called the verdict "dogmatic and regressive." "Which century are we living in?," reporter Sonal Bhadoria asked.
Her report continues:
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.In most western countries, the debate about same-sex couples has shifted on to their rights to marry. More than a dozen countries now allow homosexuals to wed.
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.
KhushDC, an LGBTQ social, support and political group for gender- and sexual-minority South Asians in the Washington, D.C. area, condemned today's ruling. But Sapna Pandya, the group's president, said that the battle for equality in that region of the globe is far from over.
"No doubt about it, today's ruling is a setback. But it doesn't take away from the fact that the recent past has seen promise for LGBTQ rights in not just India, but also other South Asian countries, including Pakistan, Bangladesh, and Nepal. We stand in solidarity with the brave activists in South Asia and worldwide who have taken such huge leaps in recent years and know they will continue the fight for equality in spite of the disappointment we all feel today."
Protesters have already taken to the streets in Mumbai (see photos below); a demonstration is planned in Delhi as well.
Photos of Mumbai protest by Kabi.