India's Supreme Court Re-Criminalizes Gay Sex
The Indian Supreme Court reinstated a law from the 1860s on Wednesday that criminalizes same-sex intercourse throughout the country. Those convicted under the colonial-era law would face imprisonment for 10 years to life. A two-judge bench from the nation's highest court reversed a 2009 decision from the New Delhi High Court that discarded the law as unconstitutional. Conservative religious groups in the country then appealed the decision. Supreme Court judges G S Singhvi and S J Mukhopadhaya sided with those groups, but added that the country's legislature should ultimately make a final decision on the law.
The law, Section 377 of the Indian Penal code, doesn't mention homosexuality in particular, although the law was designed to outlaw sodomy, along with other sexual acts deemed immoral at the time. It reads,"whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished." As written, any penetrative homosexual act is criminalized.
Although the law is rarely enforced, the threat of enforcement has been used in the past to harass NGOs working on AIDS prevention efforts, sex workers, and LGBT individuals, according to a 2006 report from Human Rights Watch. But the court didn't seem keen on applying the misuse of the law to its constitutional standing. "The mere fact that the section is misused by police authorities and others is not a reflection of the vires of the section," today's Supreme Court judgement reads, adding, "It might be a relevant factor for the Legislature to consider."
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For gay rights activists in the country, the decision is a disappointing development in a legal battle that began over a decade ago. But the Naz Foundation (India) Trust, the group behind a challenge to the anti-homosexuality law, isn't completely out of avenues in the country's judicial system. The Supreme Court's decision can be appealed with a review petition, as The Wall Street Journal explains, although that petition could be rejected. A lawyer for one of the gay-rights petitioners in the case has already promised to appeal to a larger, five-judge bench of the Supreme Court.
A defender of the law, Meenakshi Lekhi of the socially-conservative Bharatiya Janata Party, claimed that the measure is only enforced in cases of non-consensual sex, because India's rape laws only criminalize assaults against women. "If an act – be it homosexual or heterosexual – is consensual, there is no victim, so there is no complainant and no crime," she said to the Journal. Obviously, Lekhi's argument does little to explain why advocates don't lobby for a change to the country's rape laws instead, which have already undergone a series of reforms this year in the wake of a brutal rape and murder of a college student last year.
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This article was originally published at http://www.thewire.com/global/2013/12/indias-supreme-court-upholds-colonial-era-law-criminalizing-gay-sex/356003/
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