Political leaders, human rights advocates and editorial boards around the world have condemned a ruling from India’s highest court that upheld an anti-gay law known as Section 377. The law bans certain sexual acts that are supposedly “against the order of nature,” including private consensual sexual relationships between adults of the same sex.
The Indian Supreme Court’s ruling means that Section 377 will remain in effect until the nation’s legislature repeals it or until court litigants devise an additional or alternative legal strategy with a better chance of success. Both approaches face major hurdles, though the fight is hardly over.
A Major Setback in the World’s Most Populous Democracy
Though the legal challenge to Section 377 technically pertained only to the rights of adults, the court’s decision to uphold the anti-gay law could have far-reaching consequences, including for lesbian, gay, bisexual, transgender, questioning and other sexual minority youth. Unless and until the law is repealed, young LGBT people in India will grow up knowing not only that they cannot legally marry or form other legally recognized relationships with a loved one of the same sex, but that the law will condemn them as outlaws based on their most intimate relationships as adults. By effectively branding gay people (and arguably all LGBT people) as criminals, laws like Section 377 also intensify social stigmas, encourage discrimination in a wide range of areas, and contribute to anti-LGBT violence.
Sadly, 76 other countries also criminalize private sexual relationships between adults of the same sex. Among these many laws, however, India’s Section 377 stands out as particularly problematic, simply because of the country’s size: India is home to over 1.22 billion people, over one sixth of the world’s population.
Is There Short-Term Hope for LGBT Equality in India?
Though many media sources have downplayed the possibility of short-term progress for the country’s beleaguered LGBT community, human rights advocates have not given up. For starters, those who challenged the law in court, including the Naz Foundation, may continue to litigate: As The Indian Express reports, the Naz Foundation and others are exploring additional and alternative legal strategies to get the law struck down, despite the high court’s ruling.
Other advocates and LGBT-supportive political leaders have turned their focus to a legislative solution. As The Times of India notes, “significant sections of the political class are broadly sympathetic to the LGBT community’s demand for equality.”
A legislative repeal, however, may face formidable challenges, particularly given the proximity of elections. Political leaders, The Times of India explains, “may prefer to tread cautiously on the matter for the fear of offending conservative and traditional opinion just ahead of elections.”
The New York Times’ assessment is more blunt and grim:
There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. With the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.
Other reports paint a less dire picture, however. NPR, for example, quotes several government officials in India who support repeal, and reports that the country’s government “has said a day [after the decision] that it would take urgent steps to overturn the ruling.”
The Hindustan Times also notes that change is possible, or at least not hopeless; the paper observes in an article today that “top” legislative leaders in India have “strongly” opposed the ruling, and that “the government [is] contemplating an ordinance to reverse the verdict.” The article continues: “The ruling party’s clear stand also appeared to have caught the [Bharatiya Janata Party] off-guard with the opposition party refusing to make its view clear and instead, demanding an all-party meeting to ascertain if there was political unanimity on reversing the SC judgment.”
Widespread Condemnation of Section 377 and the Indian Supreme Court’s Ruling
Whatever happens in the short term, the widespread condemnation of the ruling from a broad diversity of political leaders, human rights organizations, editorial boards and LGBT activists is setting the groundwork for the law’s eventual undoing.
Some notable reactions:
- The United Nations High Commissioner for Human Rights, Navi Pillay, “expressed her disappointment at the re-criminalisation of consensual same-sex relationships in India,” calling the court’s decision “a significant step backwards for India and a blow for human rights.” Pillay emphasized that “[c]riminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified,” and she expressed hope that the decision could be undone either through legislative or further judicial action.
- Pratap Bhanu Mehta, whom NPR calls “one of India’s most respected commentators,” lambasted the court’s decision, writing, “The Supreme Court … has shamed the Constitution. Its decision will be remembered in infamy as one of those decisions that, like Dred Scott, show how liberal democracies can sometimes give rein to a regime of oppression and discrimination under the imprimatur of law.”
- The Times of India writes that the decision is a “tragic denial of minority rights.” The paper criticizes the court for its inconsistency, noting that despite displaying “activist zeal” in other cases, it “has shirked from discharging its express mandate when it came to protecting the rights of sexual minorities.”
- In an editorial entitled “The betrayal,” The Indian Express characterizes the decision as “sad and shameful,” noting that the law upheld by the court is “mostly used to harass, humiliate and deny freedom to consenting homosexual adults.”
- International human rights organizations condemned the ruling as well, of course. Human Rights Watch has called for the Indian government to “immediately seek to decriminalize adult consensual same-sex relations.” And a representative of Amnesty International said the ruling has “taken India back several years in its commitment to protect basic rights,” dealing a “body-blow to people’s rights to equality, privacy and dignity.”
- Professor Arthur Leonard provides an in-depth analysis of the high court’s reasoning here.
- Lambda Legal “deplores” the Indian Supreme Court’s ruling. A blog post from the organization’s Legal Director, Jon Davidson, notes that earlier this year, Lambda Legal “marked the 10th anniversary of the U.S. Supreme Court ruling in Lawrence v. Texas,” the historic Lambda Legal case in which the Court held that “all remaining state anti-sodomy laws in the United States” were unconstitutional. “And yet, now,” Davidson continues, “10 years after [Lawrence], the highest court in the world’s largest democracy has decided to recriminalize sexual intimacy between same-sex adults, a vivid reminder of how much work remains to be done around the globe.”
- The ignorance and hatred of those who support anti-gay laws have been on full display as well. The New York Times, for example, quoted S. Q. R. Ilyas of the All India Muslim Personal Law Board, who welcomed the ruling: “These relationships are unethical as well as unnatural,” he said. “They create problems in society, both moral and social. This is a sin as far as Islam is concerned.” Back in the United States, hate group leader Bryan Fischer tweeted praise for the decision, saying that “[h]omosexual conduct should be contrary to public policy everywhere.”
Finally, for a reaction from the U.S. State Department’s spokesperson, Jen Psaki, check out the video below. Psaki’s response doesn’t satisfy the journalists in the video, but I would cut her a little slack, given that the ruling was brand new at the time she responded to their questions.