Indian Court Criminalizes Homosexuality Once Again

| by Dominic Kelly

LGBT people in India were hit with a massive setback this week after a court decided to overturn a 2009 decision that decriminalized homosexuality. Homosexual acts were illegal under an old law still on the books, but in 2009, it was ruled unconstitutional. Now, activists in the country are facing a fresh challenge, as the law that says gay sex is “against the order of nature” is back on the books.

Section 377 Indian Penal Code was decriminalized in 2009 and served as a major win to gay rights activists in the country. Many objected the ruling, however, and groups have fought to overturn it in the four years since the landmark decision. A New Delhi court came to the ruling originally, but now, after much opposition, they have decided that the decision to change Section 377 should be left up to Parliament, not a court.

Attorney General G.E. Vahanvati said during initial arguments that British rulers imposed Section 377 of IPC upon the country and that India had a better level of acceptance for homosexuality before it came about long ago.

“The introduction of Section 377 in the IPC was not a reflection of existing Indian values and traditions, rather it was imposed upon Indian society by the colonisers due to their moral values,” said Vahanvati. “The Indian society prevalent before the enactment of the IPC had a much greater tolerance for homosexuality than its British counterpart, which at this time under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”

After this week’s ruling, gay rights activists say that this is a huge setback for their years of work to overturn Section 377.

“It’s a black day for us,” said Anjali Gopalan, founder of HIV/AIDS awareness group the Naz Foundation. “I feel so exhausted right now thinking we are being set back by 100 years … I think it’s pathetic and sad.”

“Now the conservatives have won,” said social scientist Sanjay Srivastava to BBC News India. “This verdict is remarkable and bizarre. How can a court take away a fundamental right which has been already given to people? It is a huge setback for the gay community. And it makes India look thoroughly stupid internationally.”

Those that petitioned to have Section 377 of IPC be made law again say, however, that gay sex is unnatural and that the 2009 ruling should never have happened in the first place.

“Only a man and a woman constitute a family and contribute for the holistic development of a child, which is not possible without a father and a mother,” said Amod Kanth, head of an Indian children’s welfare organization.

Still, LGBT activists are hopeful that Section 377 can once again be deemed unconstitutional when it heads to Parliament.