The reversal on Gay Rights in India

Abstract

Byline: T. Sathyanarayana Rao, K. Jacob India's Supreme Court recently issued a ruling against human rights by reinstating a law that bans gay sex. [sup][1] The Court restored Section 377 of the Indian Penal Code, a 19 [sup]th century law, barring carnal intercourse against the order of nature. The judgment has caused great dismay among liberal and progressive people and amongst activists and advocacy groups, which use judicial intervention to redress grievances against minorities of all shades in India. It has also been criticized from legal and human rights perspectives. [sup][2],[3],[4] The police use the law in question to threaten and blackmail gays, lesbians and transgender people. Violation of the law is punishable by a fine and imprisonment. Following the recent ruling, India's crimes bureau has stated that it will compile crime statistics under Section 377. The British colonial Government enacted Section 377 of the Indian Penal Code, based on Victorian morality, to criminalize non-procreative sex. The Naz Foundation, a non-Governmental Organization working in the field of human immunodeficiency virus/acquired immunodeficiency syndrome (HIV/AIDS) and sexual health, challenged the constitutional validity of Section 377 because it violated the rights to privacy, to dignity and health, to equality and non-discrimination and to freedom of expression. It also argued that the law prevented public health efforts at reducing the risk of transmission of HIV/AIDS as the fear of prosecution prevented people from discussing their sexuality and life style. The Delhi High Court on 2 [sup]nd July 2009, in a landmark judgment, held Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, as it criminalized consensual sexual acts of adults in private. [sup][5] Individuals and faith-based group appealed the High Court verdict. The Supreme Court of India, on 11 [sup]th December 2013, upheld Section 377 and overturned the judgment of the Delhi High Court that had decriminalized adult consensual same-sex conduct. [sup][1] National and International Human rights groups condemned the Supreme Court decision. The Naz Foundation and the Government of India have since filed a petition seeking review of the judgment. [sup][6],[7] They argue that there are a number of grave errors of law that need to be corrected. The judgment goes against the grain of the Supreme Court's own jurisprudence on advancement of fundamental rights and freedoms of all people, especially those who face marginalization in society. The Court's reliance on the principle of judicial restraint and Parliament's prerogative to change laws is misplaced, particularly when the law has been challenged for violation of fundamental rights of citizens. [sup][3] The judgment raises significant constitutional issues with far reaching public importance. There is a need to seek an interim stay on the operation of the judgment, as the judgment has caused immense prejudice to all adult persons who engage in consensual sex. This is particularly true for those from the Lesbian, Gay, Bisexual and Transgender (LGBT) community who had become open about their sexual identity since the High Court judgment and are now at risk of prosecution under criminal law. [sup][7] Historical records document the presence of homosexuality from time immemorial, even in our culture. The universality of same-sex expression coexists with variations in its meaning and practice across culture. Medicine and psychiatry, since the 1970's, abandoned pathologizing same-sex orientation, behavior and LGBT life-style choices. [sup][8] The new understanding was based on studies that documented a high prevalence of same-sex feelings and behavior in men and women, its prevalence across cultures and among almost all non-human primate species.[sup][9] Investigations using psychological tests could not differentiate heterosexual from homosexual orientation. …