Bloomberg News

Indian Court Upholds 153-Year-Old Law Criminalizing Gay Sex (1)

December 11, 2013

Gay Pride Parade

A transgender participates in a gay pride parade in New Delhi. Photographer: Pedro Ugarte/AFP/Getty Images

India’s top court upheld a 153-year-old colonial-era law that criminalizes gay sex, leaving it up to lawmakers to amend the legislation in a setback for homosexual rights in the world’s second-most populous country.

The ruling by a two-judge bench of the Supreme Court said the law complied with the constitution and only parliament can make any changes. The judgment reversed a 2009 verdict of the lower Delhi High Court that decriminalized same-sex intercourse between consenting adults in the nation’s capital.

“This is a really black day for us,” said Anjali Gopalan, director of the Naz Foundation, which works to prevent the spread of HIV and filed the case challenging the law more than a decade ago. “It’s really pathetic and sad.”

Today’s ruling comes as gay rights proponents around the globe struggle to achieve the same treatment as heterosexuals. While the U.K., France and Australia have taken steps to expand gay rights, Croatians last week approved a constitutional ban on same-sex marriage and Russian President Vladimir Putin stoked international ire earlier this year by signing a law banning the spread of so-called gay propaganda.

The future of the law implemented by the British before India’s independence in 1947 now rests with a parliament prone to frequent disruptions that is on course to pass the fewest bills in the nation’s history. Lawmakers retained the provision in a review of the penal code earlier this year when they tightened legislation to stop sexual assaults following street protests after the brutal gang rape of a woman in New Delhi.

‘Feudal’

The top court passed the buck to parliamentarians with the knowledge that the law won’t be amended, according to Niranjan Sahoo, an analyst with the New Delhi-based Observer Research Foundation.

“Indian society is largely conservative, feudal, and lawmakers have the same values,” he said. “So any proposal of this nature with radical consequences won’t see the light of day.”

During more than three years of court hearings, religious groups opposed the ruling that lifted the ban. Hindu, Christian and Muslim groups argued that the prohibition protected public health and morals. India has 2.5 million gay people the government told the court, according to a BBC report last year.

Members of Prime Minister Manmohan Singh’s cabinet sidestepped questions on the verdict. The government will study the ruling and decide if any action is necessary, Information and Broadcasting Minister Manish Tewari told reporters.

Colonial Law

“The Indian government did not appeal the Delhi High Court ruling, presumably because it agreed with the decision,” Meenakshi Ganguly, South Asia director of New York-based Human Rights Watch, said in a statement. “Now it should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead on ending such discrimination.”

The Australian Capital Territory, which includes the country’s capital Canberra, this year allowed gay marriage for the first time. Prime Minister David Cameron’s bill to allow same-sex marriage in England and Wales became law in July, after France passed similar legislation in May. Canada and South Africa made gay marriage legal in 2005. In the U.S., 15 states and the District of Columbia recognize same-sex unions.

‘Retrograde’

Colin Gonsalves, a lawyer who represented one of the gay-rights petitioners, said he would appeal for a larger five-judge panel to review today’s verdict and was confident the law would be struck down. Naz had argued the law violated rights to privacy and equality guaranteed under the constitution, and was used to harass or blackmail gay men and women in return for money or sex.

“The judgment is so retrograde and backward looking,” Gonsalves said. “It violates the fundamental rights of thousands of people in the country.”

Section 377 of the Indian penal code, drafted by British rulers in 1860, outlaws “carnal intercourse against the order of nature, with any man, woman or animal.” While offenders face life imprisonment and a fine, prosecutions are rare.

Swami Ramdev, an Indian yoga guru who says he has 20 million supporters, was among those who advocated keeping the law in place. His trust filed an appeal against lifting the ban, saying it would result in the spread of HIV/AIDS and other sexually transmitted diseases in the country.

To contact the reporters on this story: Andrew MacAskill in New Delhi at amacaskill@bloomberg.net; Pratap Patnaik in New Delhi at ppatnaik2@bloomberg.net

To contact the editor responsible for this story: Daniel Ten Kate at dtenkate@bloomberg.net


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