DNA Magazine


The world’s largest democracy recriminal­ises homosexual sex in a surprising setback for gay rights.


India’s Supreme Court has upheld the country’s colonial era Section 377 anti-sodomy law. Court justices said that Indian society was simply not yet ready for the law to be repealed. Section 377 of the penal code was introduced to Indian society during British rule in 1861 criminalis­ing any sexual activity “against the order of nature”, including homosexual­ity.

In 2009, a New Delhi high court struck down the antiquated law as a result of a challenge by HIV awareness and prevention group, The Naz Foundation. “We declare that Section 377, insofar as it criminalis­es consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constituti­on,” Chief Justice Shah and Justice Muralidhar said at the time. In the four years since that ruling, India’s LGBTI community has become increasing­ly visible, holding pride marches in major cities and opening gay businesses. Gay characters and themes have also been increasing­ly popular topics for filmmakers.

When India’s Attorney General refused, religious groups challenged the New Delhi decision, which the Supreme Court has now overturned. The constituti­onality of Section 377 has now been passed on to parliament and lawmakers, should they decide to act upon it. “It is for the legislatur­e to look into desirabili­ty of deleting Section 377,” Supreme Court justices GS Singhvi and SJ Mukhopadha­ya said. The verdict dismayed activists and journalist­s who were following the decision. Shivam Vij of the Express Tribune tweeted, “Two judges have just decided that 1.2 billion people can have sex only in the missionary position.”

LGBTI rights organisati­on, the Chennai Rainbow Coalition, called the ruling a tragedy. “The Supreme Court has, in one fell stroke, again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehen­ded felons’. The judgment of the Supreme Court is an unconscion­able blow to the dignity of LGBT persons who, as per the Constituti­on, are entitled to equal treatment.” Organisers of a protest rally in Mumbai wrote, “We wonder why the court felt it was outside its jurisdicti­on to interpret a colonial-era law within the purview of a Constituti­on written postIndepe­ndence.”

Around the world, activists and allies in 40 cities have expressed their disapprova­l with the judgment and solidarity with India’s gay community. Pauline Park, chair of the New York Associatio­n for Gender Rights Advocacy (NYAGRA) stated, “India has an obligation to protect its LGBT citizens from discrimina­tion in the wake of the Supreme Court’s disgracefu­l ruling. Whether that comes through litigation or legislatio­n, the government must act expeditiou­sly to overturn this archaic and bigoted relic of the colonial era and put an end to institutio­nalised homophobia and transgende­r-phobia.”

The same week India’s Supreme Court ruled consensual gay sex a crime, it was reported that of 706 rapes reported in Delhi over the past year, only one saw a conviction.

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