India top court reinstates gay sex ban

The Supreme Court really isn't very liberal, is it...

I'm appalled by the decision itself and by the wording of the judgment if it's true what the article below quotes. But considering how deeply divided Indian society is I'm not holding my breath for a swift reversal of the decision either.

From a legal point of view it's an interesting question whether or not the Delhi High Court overstepped its powers in 2009. In my country there's one court with the power to overturn legislation as unconstitutional - other courts may not take these decisions themselves but they will issue a remand (not sure about my legal vocabulary here) so the constitutional/supreme court can take up the case. Anybody know how it's done in India when done right? Have there been other cases of High Courts declaring legislation as unconstitutional?


www.theguardian.com/world/2013/dec/12/un-asks-india-review-gay-sex-ban

The UN has called on the Indian government to seek a rapid review of the country's supreme court's decision on Wednesday to criminalise gay sex.

The decision by the court to reinstate a ban on same-sex relationships overturned four years ago by a lower court represents a "significant step backwards for India" and violates international law, Navi Pillay, the UN high commissioner on human rights, said.

"Criminalising 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," Pillay, a South African former judge, said in a statement issued in Geneva.

The international support will hearten stunned local campaigners who have waged a long battle for same-sex relations to be legalised in the world's biggest democracy – though it could strengthen opposition from conservatives who have described homosexuality as a "disease" imported from the west.

Anjali Gopalan, an activist, said she had been "horrified by the judgment".

"It reflects a conservative mindset. After so much effort we are back to square one. Whatever we have gained over the years we seem to have lost," Gopalan, director of the Naz Foundation Trust, told the Guardian.

Dozens of Bollywood stars have now come forward to criticise the supreme court's decision to reinstate Section 377 of India's penal code which bans "sex against the order of nature" and is widely interpreted to mean gay sex. The colonial-era rule was introduced under British rule in the 19th century.

Aamir Khan, one of India's biggest film celebrities, described the judgment as "very intolerant and violative of basic human rights".

Freida Pinto, who starred in the Oscar-winning Slumdog Millionaire, said on Twitter she was "absolutely appalled by such narrow mindedness".

The supreme court judges argued that the Delhi high court had overstepped its powers with the decision four years ago as only India's government could change the law. Section 377 should therefore be reinstated, they said.

Sonia Gandhi, the president of the ruling Congress party on Thursday called on the national assembly "to address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those affected by this judgment".

Gandhi described Section 377 as "an archaic, repressive and unjust law that infringed on basic human rights" and said that [the Indian] constitution "has given us a great legacy … of liberalism of openness, that enjoin us to combat prejudice and discrimination of any kind".

Kapil Sibal, minister of law, said that the government was "considering all possible options" but that time was short.

However, it appears unlikely that parliamentary time will be found soon to debate new legislation. It would be unusually bold for an administration widely seen as weak to take on such a controversial issue months before what promises to be a tricky battle to retain power at a general election due next spring.

There has been no clear indication of the position of the opposition Bharatiya Janata party, which has roots in deeply conservative Hindu religious and cultural organisations, on the supreme court judgment.

The fierce debate, at least among metropolitan elites in India, over the last 24 hours is a further example of how sexuality has become a battleground in the fast-changing country, often revealing cultural splits between generations, between urban and rural dwellers and between those who invoke a "traditional past" contaminated by western influences and those who stress a local history of pluralism and tolerance.

Few expected the legal challenge launched by conservatives – including Muslim and Christian religious associations, a rightwing politician and a retired government official-turned astrologist – against the 2009 decision to succeed. The supreme court is known for its broadly progressive judgments that often order politicians or officials to respect the rights of the poor, disadvantaged or marginalised communities.

Gay rights activists say that gay people face significant discrimination and police harassment, even if prosecutions for same-sex activity have been rare. Criminalising gay sex makes them vulnerable to blackmail, they say, and causes misery for many who already face prejudice from even close family members.

On Wednesday Vikram Seth, the Indian author, spoke of many gay men in India living lives of "quiet desperation".

Defenders of the supreme court decision said the objections of the judges to the repeal of section 377 were "constitutional and legal, not moral".

However, critics said that the wording of the judgment – which refers to the "so-called rights of LGBT persons", describes same-sex relations as "against the order of nature" and says that "lesbians, gays, bisexuals or transgenders constitute only a miniscule fraction of the country's population" – reveals deep prejudice.

Pillay, the UN human rights commissioner, said she hoped the supreme court might now exercise its review procedure, in effect agreeing to re-hear the case before a larger panel of judges.

However activists are not hopeful of any swift reversal of Wednesday's decision. "I'm not holding my breath," said Gopalan, of the Naz Foundation.

I don't know if Hinduism has any prohibitions against homosexuality like Christianity or Islam, though that doesn't mean there aren't anti-LGBT Hindus out there.

Ramdev offers to "cure homosexuals" at his Haridwar ashram

Does this mean that,
if in an Indian community there were two lesbians who wanted to marry each other,
and two gay men who wanted to marry each other,
then that community would be satisfied if one of the gay men married one of the lesbians,
and the other gay man married the other lesbian?

If the "two couples" then bought a duplex house and moved in,
would the community bother to investigate who was actually living with whom?

D.

I'm not entirely sure how you can much such sweeping claims about the whys and wherefores of India's LGBT community when you're a) not part of it, and b) don't knowingly know any member of it. Speaking as someone who is Gay, albeit not in or from India, I can tell you for nothing that the way many Straight people think we live our lives and why tends to be a million miles away from the actual truth.

I was in my teens when the Homosexual Law Reform bill was passed in New Zealand in the mid 1980s, decriminalsing sex between consenting adult males (sex between consenting adult females didn't need to be decriminalised, because according to the statutes, it didn't exist). I saw first-hand the hatred, vilification, bigotry and sheer heaped ignorance that comes from marginalising people, and they frequently used the law (and often religious edicts, as well) to justify and defend their behaviour and beliefs towards us. My own MP called our community scum and filth, and told us to go "back to the sewer where you belong." Yes, this was all happening during the height of the AIDS pandemic, but it was happening in what was(and is) for the most part, a progressive, peaceful, and relatively liberal country. Those criminaling laws may mean nothing to you, but they hang over the heads of LGBT people like the sword of Damocles, no matter which part of the world they live in. Anything which renders you illegal, also tends to render you silent and invisible.


Vikram Seth is someone who does know what it is to be Gay in India, albeit from a relatively safe, comfortable and privileged position. As usual, he says things far better than I could...

indiatoday.intoday.in/story/vikram-seth-on-gay-rights-homosexuality/1/332025.html

Don't put words into my mouth, and stop turning this into absolutes of 'all' or 'nothing', 'everybody' or 'nobody'. I never said everyone who is in the closet in India is there because of the law. And not being convicted under Section 377 doesn't mean it hasn't been used. Human Rights Watch and Amnesty International both have many recorded instances of Section 377 being invoked in threats, extortion and discrimination against individuals and organisations, and that includes by the Police. 


What you said was "The reason gays are in the closet has nothing to do with any laws", which is not the same as what you've just said. I was trying to point out that such laws are major factors, and I know they are because I have lived under similar laws. Yes, there are many other factors, of course there are, but that doesn't mean the consequences of these laws returning/remaining in statute should be ignored or down-played.


I'm not surprised if you were looking up Roshan rather than Vikram. You can't have looked very far in Vikram's direction: www.outlookindia.com/article.aspx?232671 


Apart from your saying that the law has "nothing to do" with LGBT people being in the closet, and that removing those laws would have no "real effect" on Gay peoples' lives, both points of view which Vikram Seth (especially in the above link) and I disagree with you pretty strongly on.


No, I didn't, I never said it was, and I'm sorry (and perplexed) that you think I did, but that is not by way of an apology for anything I said in my original post. I was questioning your apparently speaking on behalf of, and as some sort of authority on, a community that by your own admission you have nothing to do with, and from what I can see know little about. If I took umbrage at anything, it was at that, but that is hardly the same as calling someone out as being hateful or bigotted. I don't think you or your comments were any of those things, but I've found some of what you've said on this topic arrogant and misguided. If I sat here and told you what it is to be an Indian man living in America as though it were fact when I know little about it I'd expect to be challenged on it. And not with ridiculous threats of karmic retribution, either. There was a reason why those two paragraphs in my original post were separate, not the least of which that they were two different subjects, but as you say, if you are looking for such things in "every utterance everybody makes", you'll find them. Honestly, in 1000+ posts on both Bollywhat forums, I think this is the first time I've talked about being Gay, and yet you make it sound as though I'm some sort of frothing, card-carrying, Uzi-wielding member of the Gay Mafia, lying in wait to pounce at the most minor provocation. If I was, do you really think I would spend my time watching Bollywood movies? 

What I was trying to point out - from personal experience - was that people who do villify the Gay community (like some of those in the articles in the original posts, for example) can and do use such laws to justify themselves and to condemn others, and by trying to explain what some of the realities are for Gay people living in a society where being LGBT is criminalised. Because I know first-hand what it's like, and you, probably along with the vast majority of people on this Board, do not. That is all. When those laws are gone, that means there is one less weapon that can be used against a minority. And yes, that does make a difference. Sometimes it can make all the difference in the world.