John M. Becker

India Supreme Court Doubles Down on Gay Sex Ban

Filed By John M. Becker | January 28, 2014 11:00 AM | comments

Filed in: Politics
Tags: decriminalization, gay sex, India, India Supreme Court, recriminalization, shocking, sodomy law, wrong side of history

india_map.gifIn a stubborn refusal to join the 21st century, a two-judge panel of the Supreme Court of India declared today that it would not reconsider its shocking decision last month to recriminalize gay sex by reinstating the country's colonial-era sodomy ban.

That decision, which reversed a landmark 2009 lower court ruling, sparked outrage across India and around the world. Politicians, government officials, major newspapers, celebrities, and LGBT advocates roundly condemned the Supreme Court ruling as retrograde, "medieval," and a violation of basic human rights.

Some human rights advocates and court observers had hoped the fierce backlash would prompt the court to rethink its decision, but today's announcement put those hopes to bed. This means gay sex will remain a criminal offense in India as it was in the years between 1861 and 2009 (and again after December 11, 2013), punishable by up to ten years in prison.

It's estimated that between 14% and 17% of the world's LGB population lives in India, the second most populous nation on Earth. What can be done to restore their basic human rights? We'll consider the possibilities, after the jump.

mumbai_protest_2.jpgIt appears that there are two options that remain for India's newly recriminalized LGB population.

The first is the course of action that the India Supreme Court advised in its ruling last month: parliamentary repeal. However, as the New York Times reported, there is nearly no chance of that happening:

There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. And with the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospects of any legislative change happening for 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. The Supreme Court has not just let down the L.G.B.T. community," Ms. Gopalan said, referring to gays, lesbians, bisexuals and transgenders, "but the constitution of India."

The option of last resort is what's called a curative petition, where an aggrieved party asks senior justices of the full 28-member Indian Supreme Court to intervene to protect against a violation of basic human rights. But today's panel decision indicates that a curative petition is not likely to succeed.

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