No to LGBT! That is what the legal wisemen of the Indian Supreme Court which overturned a lower court’s decision to rule against a law enacted since British colonial times 150 years as being “Unconstitutional”.
The NY Times report:
India’s Supreme Court Restores an 1861 Law Banning Gay Sex
Altaf Qadri/Associated Press
Gay rights activists at a protest in New Delhi on Wednesday. A law that was reinstated on Wednesday had been ruled unconstitutional in 2009.
By GARDINER HARRIS
Published: December 11, 2013
NEW DELHI — The Indian Supreme Court reinstated on Wednesday a colonial-era law banning gay sex, ruling that it had been struck down improperly by a lower court.
Related in Opinion
Editorial: India’s Reversal on Gay Rights (December 12, 2013)
The 1861 law, which imposes a 10-year sentence for “carnal intercourse against the order of nature with man, woman or animal,” was ruled unconstitutional in a 2009 decision. But the Supreme Court held that only Parliament had the power to change that law.
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.
Anjali Gopalan, founder of a charity that sued to overturn the 1861 law, said she was shocked by the ruling.
“This is taking many, many steps back,” Ms. Gopalan said. “The Supreme Court has not just let down the L.G.B.T. community, but the Constitution of India.”
S. Q. R. Ilyas, a member of the All India Muslim Personal Law Board, which filed a petition in support of the reversal, praised Wednesday’s 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.”
India has a rich history of eunuchs and transgender people who serve critical roles in important social functions and whose blessings are eagerly sought. Transgender people often approach cars sitting at traffic lights here and ask for money, and many Indians — fearing a powerful curse if they refuse — hand over small bills.
Despite this history, Indians are in the main deeply conservative about issues of sexuality and personal morality. National surveys show that Indians widely disapprove of homosexuality and, on average, have few sexual partners throughout their lives.
The pressure to marry, have children and conform to traditional notions of family and caste can be overwhelming in many communities. Indian weddings are famously raucous and communal affairs. So gay men and women are often forced to live double lives.
Asian nations typically take a more restrictive view of homosexuality than Western countries. In China, gay sex is not explicitly outlawed, but people can be arrested under ill-defined laws like licentiousness.
The law banning homosexuality is rarely enforced in India, but the police sometimes use it to bully and intimidate gay men and women. In rare cases, health charities that hand out condoms to gays to help prevent the spread of H.I.V. and AIDS have had their work interrupted because such efforts are technically illegal under the law.
But inspired by gay rights efforts elsewhere, activists in India have in recent years sought to assert their rights, holding gay rights marches and pushing for greater legal rights and recognition.
As part of this effort, the Naz Foundation, a gay rights advocacy group, filed suit in 2001 challenging the 1861 law, known here as Section 377. After years of wrangling, the group won a remarkable victory in 2009, when the Delhi High Court ruled that the law violated constitutional guarantees for equality, privacy and freedom of expression.
India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election.
Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.
But legalizing gay sex was one step too far for India’s top judges, and in a rare instance of judicial modesty they deferred to India’s legislators.
India’s central government had offered conflicting arguments during the many years of wrangling around the case. But Indira Jaising, an assistant solicitor general of India, said in a televised interview that she was surprised that the court had decided to punt on the underlying legal case.
“They have never been deterred by the argument that the government, the legislature or the executive has not done this or that on other policy matters,” she said.
Malavika Vyawahare contributed reporting.
Since only the Indian Parliament could over turn the Indian Supreme Court, it is unlikely that the decision of uphold a law based on traditionally conservatism for natural opposite sex intercourse practices would be changed for the interest of the minority.
It is a test of the world’s largest democracy.
Then again majority of Indians are conservative and uphold traditional and religious beliefs and values against the give in into the notion of personal or individual human rights.
Despite the Western Media lambasting this decision as being “Archaic law enacted during Victorian era”, majority of Commonwealth nations still uphold the law and conservatism against LGBT.
National Geographic report:
India’s Anti-Gay Sex Ruling Casts Light on Other Countries With Anti-Gay Laws
The U.K.’s anti-gay “buggery laws” were exported to all its colonies, including India. Other countries have adopted harsh anti-gay laws more recently.
Indian gay rights activists protest after the country’s top court issued its ruling on Wednesday.
PHOTOGRAPH BY ALTAF QADRI, AP
Michael Lokesson and Anna Kordunsky
PUBLISHED DECEMBER 11, 2013
India’s Supreme Court on Wednesday restored a colonial-era law banning gay sex, overturning a 2009 lower court ruling that deemed the 1861 law unconstitutional—and igniting controversy around the world.
The Indian justices ruled that a lower court had overstepped its bounds and that only Parliament could rescind the law criminalizing “carnal intercourse against the order of nature with man, woman or animal.”
A conviction under the law carries up to a ten-year prison sentence.
Known in India as Section 377, the law is a holdover from the British colonial administration.
“The old Victorian law got exported by the United Kingdom to all its colonies—India as well as Jamaica and the Caribbean Islands—and there it’s called ‘buggery law,'” Boris Dittrich, advocacy director of theLGBT rights program for Human Rights Watch, told National Geographic earlier this year. “But it’s the same kind of law which criminalizes homosexual conduct.”
“Buggery,” an archaic British term for sodomy, is limited to males, and lesbian relations rarely result in criminal sanction in countries where such laws are still in effect. The degree to which these laws are enforced also varies widely, and most have seen less and less usage over the decades, if not outright repeal.
Canada, for instance, had strict anti-sodomy laws through much of its history. Adopting the British anti-sodomy law as its own in 1859, the act was punishable by death until 1869. The law was broadened in 1892 to include all male homosexual acts under the term “gross indecency.”
The law was changed again in the mid-20th century, when it labeled gay men as “criminal sexual psychopaths” and “dangerous sexual offenders.” Everett George Klippert was prosecuted and sentenced to indefinite “preventative detention” (essentially a life sentence) as a sex offender under the law in 1965. Canada decriminalized homosexual activity in 1969; Klippert was released two years later.
While former British colonies like Canada, Australia, New Zealand, and others repealed the buggery laws in the 1960s and 1970s, a large majority of nations in Africa, the Caribbean, and South Asia have kept theirs on the books. While enforcement is rare, their existence furthers LGBT stigmatization, according to Grace Poore, regional coordinator for Asia and Pacific Islands at the International Gay and Lesbian Human Rights Commission (IGLHRC).
“These laws create a certain kind of climate, and this makes people fearful,” Poore said. “Many people will be afraid to come out because they are afraid they are going to be criminalized.”
Police and other officials can use the laws to blackmail people, even if criminal prosecutions don’t take place, according to Poore.
Former British colonies are not the only countries that criminalize homosexual sex. Despite positive recent developments for LGBT people in the United States and other parts of the world, consensual same-sex relations remain a crime in at least 76 countries, according to a United Nations report released in 2011.
The following eight nations have recently adopted or have especially harsh anti-gay laws.
“Homosexual conduct is criminalized in 38 states in Africa, and in many, laws are becoming stricter,” said Dittrich. “In several of these countries, LGBT people are being arrested and detained, sentenced to prison by the judge, simply because they are gay.”
He pointed to Cameroon as a prime example. Homosexual conduct there is punishable with a fine and up to five years in jail.
Broader hostility toward homosexuality is on the rise in the country. In July, Eric Ohena Lembembe, Cameroon’s most prominent and outspoken LGBT rights activist, was found murdered in his home after having been tortured.
Homosexuals, especially gay men, are regularly prosecuted in Cameroon, and it sometimes takes as little as a text message to another man expressing love or having an appearance perceived as overly effeminate to be put behind bars.
Jamaica is one of 11 former British colonies in the Caribbean that still have the British buggery laws on the books prohibiting male homosexual relations.
Jamaica’s anti-gay laws (formally, the Offenses Against the Person Act) were instituted in 1864. While almost never enforced, the laws can still carry a sentence of up to ten years of hard labor.
In Uganda, home to some of the harshest anti-gay laws in Africa—with sentences for homosexuality ranging from 14 years to life imprisonment—some political forces have been seeking to pass an even harsher anti-homosexuality bill.
While the bill includes such headline-grabbing provisions as the death penalty for “aggravated homosexual conduct,” the scope of the proposed law is what has many gay activists most worried, said Human Rights Watch’s Dittrich.
One clause in the legislation states that anyone, including family members of LGBT people, can be prosecuted for not notifying authorities within 24 hours if they know someone who is gay, with sentences of up to three years in prison. Another clause states that Ugandan citizens can be prosecuted for homosexual activities that take place outside the nation’s borders.
In response to international criticism, the bill has been tabled for now.
In April 2009, Burundi’s lower house of government passed a lawoutlawing homosexual activity, with prison sentences for the convicted ranging from two months to three years. President Pierre Nkurunziza led the criminalization effort and worked with the country’s National Assembly to sign the act into law, even after its senate overwhelmingly rejected the proposal.
Burundi, a landlocked Francophone nation in East Africa, previously had some of the most lenient policies toward the LGBT community in the region, particularly when compared with Kenya (10 years hard labor), Uganda (14 years to life imprisonment), and Tanzania (20 years to life in prison).
A 2011 report by the U.S. State Department found that no one in Burundi had been arrested or prosecuted under the anti-gay law that year, feeding the suspicions of the president’s critics that the move was a political ploy.
That some of the more vicious crackdowns on LGBT communities are taking place in sub-Saharan Africa’s poorest countries is not a coincidence, said the International Gay and Lesbian Human Rights Commission’s Jessica Stern, since the attention they generate can sometimes provide a useful distraction from other pressing priorities.
“It’s a great political strategy—find those who are the most hated and pick on them,” she said earlier this year. “And then people forget to think about whether or not schools are being fixed up for their children, and whether the rich are getting richer at the poor’s expense.”
Under the penal code of the Islamic Republic of Iran adopted after the 1979 revolution, death is a potential punishment for homosexuality. Kissing another man or woman in public may result in 60 lashes.
International human rights groups have collected evidence that Iranhas executed men on homosexuality charges, and documented casesof arrests, imprisonment, and physical abuse of LGBT persons based on their sexual orientation or association with other members of the LGBT community.
An updating of Iran’s penal code in May 2013 criminalized homosexual identity, rather than specific acts, making it punishable by 31 to 74 lashes.
Homosexuality was described by the secretary general of Iran’s high council for human rights as “an illness and malady,” and by former President Mahmoud Ahmadinejad as something that “we don’t have in our country.” A Tehran journalist who interviewed several Iranian homosexuals to show that they do indeed exist received 60 lashes and a four-year jail term.
Qatar’s anti-homosexuality laws have come under increased scrutinyas it prepares to host the 2022 World Cup. Qatari law considers homosexuality a criminal offense punishable by up to seven years in jail (or a life term when one of the parties is under 16 years of age).
Along with the civic penal code, Islamic Sharia law is on the books in Qatar, though it applies only to Muslims. It dictates death for homosexual acts committed by married persons and flogging for homosexual acts by unmarried individuals.
Singapore and Malaysia
As former British colonies, both nations still have Section 377 laws outlawing gay sex between men. In 2007 Singapore modified its laws to permit oral and anal sex between heterosexuals and lesbians, but male homosexual sex remains criminalized.
“As recently as a few years ago, two men [in Singapore] were arrested and charged under 377A for having sexual relations” in a bathroom stall, said IGLHRC’s Poore. They were prosecuted under the lesser charge of “gross indecency,” however.
The Indian Supreme Court’s ruling is a setback, according to Poore, for movements in both Singapore and Malaysia that are currently contesting the 377A law’s constitutionality in the courts, since both movements reference the 2009 Delhi court ruling in making their cases.
“[Today’s ruling] will have repercussions beyond the borders of India.”
In the true principle of democracy, the interest of the majority supersedes the wants and desires of the minority and individuals. Especially when these interests are based on beliefs, values and tradition.
It is interesting to note the comments of Malaysian Opposition leaders on this latest legal precedent set in India, since they support the move for LGBT in Malaysia.