India's Supreme Court reinstates ban on gay sex

Wednesday 11 December 2013 21.22
Rights activists gathered in New Delhi following the Supreme Court ruling
Rights activists gathered in New Delhi following the Supreme Court ruling

India's Supreme Court has reinstated a ban on gay sex after a four-year period of decriminalisation.

In 2009, the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits "carnal intercourse against the order of nature with any man, woman or animal" and lifted the ban for consenting adults.

The Supreme Court threw out that decision, saying only parliament could change Section 377 of the penal code, widely interpreted to refer to homosexual sex.

Violation of the law can be punished with up to ten years in jail.

The move shocked rights activists around the world, who had expected the court to simply rubber-stamp the earlier ruling.

In recent years, India's Supreme Court has made progressive rulings on several issues such as prisoners' rights and child labour.

"It's a black day for us," said Anjali Gopalan, the executive director of the Naz Foundation, a Delhi-based NGO that works on sexual health and led the consortium of advocacy groups defending the 2009 judgment.

"I feel exhausted right now, thinking that we have been set back by 100 years."

US actress Mia Farrow described the decision as "a very dark day for freedom and human rights".

India's Law Minister Kapil Sibal said the government could raise the matter in parliament.

The government of Prime Minister Manmohan Singh was seen to broadly support the 2009 ruling, and some ministers said they opposed today’s rollback.

But it seems unlikely the government will risk taking a stand on the issue in the short term.

General elections are due by next May and the socially conservative Hindu nationalist opposition is already gathering momentum.

India's gay culture has opened up in recent years, although the country remains overwhelmingly conservative and sex outside marriage, even among heterosexual couples, is largely frowned upon.

India's first gay pride march took place in the eastern city of Kolkata in 1999 and only around a dozen people attended.

Yet, since 2008, India's capital Delhi, its financial centre, Mumbai, the IT hub of Bangalore and other cities have started holding much larger events.

Gay film festivals and university campus groups have also sprung up.

The 2009 judgment had allowed people to organise such events far more openly by protecting gay people from being fired because of their sexuality, and has meant that doctors could no longer refuse to treat homosexuals, activists say.

Gay rights activists have also long argued that the current law reflects British colonial standards of morality and notIndian traditions.

India's trans-gender community, known as the Hijras, have played a role in its society for hundreds of years.

The 2009 ruling was the result of a case brought by the Naz Foundation, which fought a legal battle for almost a decade. 

After the ruling, a collective of mostly faith-based groups took an appeal to the Supreme Court.

The Naz Foundation and other groups could now seek a review or a so-called "curative petition" to overturn the Supreme Court's ruling, but these options rarely succeed, said Arvind Narrain, one of the lawyers representing the advocacy groups.

Keywords: india