Even consensual gay sex in India can attract a life-term jail sentence.
By Rajiv Theodore
NEW DELHI: “The Supreme Court is so gay” says the twitter account of Pepsi Co. Obviously an angry hacker had reacted to the apex court’s Wednesday judgment which negated the 2009 ruling by the High Court that had given its consent to homosexual sex.
The Supreme Court said that the lower court had overstepped its powers with its decision four years back and that only Parliament could change the law dating back to the 19th century, adopted by the British colonial rulers. The transgression would attract a jail sentence of up to a life-term.
The move has shocked all and sundry, gays and straights alike. They were unanimous in their condemnation of the reversal of the order stating that this could have serious effect on the fundamental rights of the individual.
“I am more disappointed with this judgment. It feels very intolerant and violative of basic human rights. It’s a shame,” superstar Aamir Khan expressed on Facebook.
Actor John Abraham tweeted: “India has harbored archaic prejudices once again… The Supreme Court has criminalized homosexuality… Shame.”
The High Court ruling in 2009 to give consent to same sex relationships was brought about by the Naz Foundation, an Indian sexual rights organization, which fought a legal battle for almost a decade.
After the Delhi High Court ruling in its favor, faith-based groups garnered together and had appealed to the Supreme Court.
“All the major communities of the country — the Hindus, the Christians and the Muslims — had appealed against the ruling of the Delhi High Court,” a lawyer for a Muslim charity told reporters. “They had said that this unnatural sex is not permissible in all the religions of the world.”
The decision could now be appealed through a so-called “curative petition”, which would be heard by a panel of five judges.
In a statement, South Asia Director of Human Rights Watch Meenakshi Ganguly said “The Supreme Court’s ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination. But now the government should do what it should have done in the first place and seek to repeal section 377.”
And worse still the decision got timed with elections. Politicians here are not known to take a firm stand on issues like homosexuality as it do not fetch votes. They fear that any strong stand on such rarefied topics would erode their votes, especially the traditional ones. And it was the right wing BJP, lobbies from the Christian and Muslim religious groupings that challenged the High Court order. The government on its part as usual has never been known to take difficult decisions.
But it must be clarified that courts do not have anything to do with the making of a law, it is up to the executive to do so. To see the whole episode from another prism the court cannot be faulted for the decision.
Some days back Finance Minister P Chidambaram, while speaking at The Economic Times Awards had this to say, “The balance in India has swung away from the executive, and in recent years has swung away even from Parliament and the legislature, and the judiciary has taken the upper hand. I have great respect for the judiciary but what judicial institutions, and sometimes even quasi-judicial institutions have done, in my respectful submission, have completely altered the balance that is required on governance.”
Condemnation poured in. US State Department spokesperson Jen Psaki reacted, “That’s a decision that the Indian government would make. We obviously don’t make decisions on behalf of other governments and their legislation. So I expressed our deep concern about any efforts around the world to not recognize that LGBT rights are human rights and that’s a message we’ll continue to convey,” she said.
The United Nations too reacted in a similar fashion. The world body said the decision was a “significant step backwards for India” and violates international law,’’ United Nations human rights chief Navi Pillay said in a statement from Geneva. “Criminalizing private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified,” the statement added.
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