by Mike Andrew -
SGN Staff Writer
India's Supreme Court said on December 11 that Gay sex should remain a crime, reversing a 2009 court ruling that decriminalized same-sex relations.
In the case of Kumar Kaushal v. Naz Foundation, the top court upheld Section 377, an 1861 law that forbids 'carnal intercourse against the order of nature with man, woman or animal.' The law, passed by the British when they controlled India, makes Gay sex punishable by 10 years in prison.
In 2009, the Delhi High Court ruled that the law violates constitutional guarantees of equality, privacy, and freedom of expression, but the Supreme Court vacated the lower court ruling.
While it did not say definitively that Section 377 was constitutional, the Indian Supreme Court said that only Parliament can change that law. Legislative repeal of Section 377 is considered unlikely since the conservative Hindu nationalist party, Bharatiya Janata, seems poised to win upcoming parliamentary elections.
Anjali Gopalan, founder of the Naz Foundation that sued to overturn the law against Gay sex, said she was shocked by the ruling.
'This is taking many, many steps back,' Gopalan told BBC News. 'The Supreme Court has not just let down the LGBT community, but the Constitution of India.'
India's national government filed contradictory briefs during the many years of legal wrangling around the case, although its most recent position was that Section 377 should be struck down.
Indira Jaisigh, an assistant solicitor general of India, said in a televised interview that she was surprised that the Supreme Court decided to punt on the underlying legal case, given the court's longstanding reputation for judicial activism.
'They have never been deterred by the argument that the government, the legislature, or the executive has not done this or that on other policy matters,' she said.
A coalition of Indian LGBT rights groups condemned the decision and promised to keep fighting for removal of all legal barriers to LGBT equality.
'It is a tragedy that this judgment forgets the vision of the founders of the Indian republic which was so eloquently captured by the Delhi High Court,' the groups said. 'By re-criminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru...
'We proclaim that in spite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice,' their statement concludes. 'We pledge to continue this struggle with redoubled vigor till such time that Section 377 is consigned to where it belongs - the dustbins of history.'
The statement was signed by Voices Against 377, Alternative Law Forum, Adhikaar, and other petitioners including parents of LGBT persons, mental health professionals, academics, and law professors.
On the other side, S. Q. R. Ilyas, a member of the All India Muslim Personal Law Board, which had filed a petition in the case asking that the lower court decision be reversed, praised the ruling.
'These relationships are unethical as well as unnatural,' Ilyas said. 'They create problems in society, both moral and social. This is a sin as far as Islam is concerned.'
Legal experts said that Section 377 is rarely enforced in India, but the police sometimes use it to bully and intimidate Gay men and Lesbians. In rare cases, public health organizations that distribute condoms to help prevent the spread of HIV have had their work interrupted because such efforts are technically illegal under the law.
The US LGBT rights organization All Out also issued a statement condemning the Indian court's decision.
'This is a sad day for India and for the world,' Joe Mirabella, Director of Communications for All Out, said. 'No one should have to go to jail because of who they are or who they love. We stand in solidarity with India's human rights community.
'Sadly this ruling now brings the total number of countries that make it a crime to be [LGBT] from 76 to 77. It's essential that we bring that number to zero. No person should have to sacrifice their family or freedom, safety or dignity, because of who they are or who they love.'
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