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Topics In the News
India's Supreme Court Reinstates Sodomy Law
Posted by: Claude J. Summers on 12/11/13
Last updated on: 12/11/13
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Author Vikram Seth responds to the court's decision.

In a shocking decision issued on December 11, 2013, India's Supreme Court reinstated the nation's ban against "carnal intercourse against the order of nature." The Court overruled the New Delhi Court's 2009 decision that had declared unconstitutional Section 377 of the penal code written by the British in 1860. The Supreme Court said that only Parliament could repeal the Section, violation of which can be punished by up to ten years in prison.

As Shyamantha Asokan reports in Reuters "The move shocked rights activists around the world, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, India's Supreme Court has made progressive rulings on several issues such as prisoners' rights and child labor."

"It's a black day for us," said Anjali Gopalan, the executive director of the Naz Foundation, a Delhi-based NGO that works on sexual health and led the consortium of advocacy groups defending the 2009 judgment.

Gopalan added, "I feel exhausted right now, thinking that we have been set back by 100 years."

Ashok Row Kavi, of the activist group Humsafar Trust, said, "This is a very sad day for us, we are back to square one in our fight for the democratic rights of the gay community."

"One would never expect the supreme court of India to make such a retrograde order, that is so against the trend internationally," said rights lawyer Colin Gonsalves.

"This takes us back to the dark ages. This is a day of mourning for us in India," Gonsalves added.

India's Law Minister Kapil Sibal said the government could raise the matter in parliament. Prime Minister Manmohan Singh had supported the 2009 ruling, and some ministers said they opposed rollback.

But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are scheduled for May 2014 and the socially conservative Hindu nationalist opposition is expected to make gains in the election.

India's gay culture has become increasingly open in recent years, although the country remains overwhelmingly conservative and sex outside marriage is frowned upon.

India's first gay pride march took place in the eastern city of Kolkata in 1999 and attracted only a few more than a dozen people. Since 2008, however, cities such as Delhi, Mumbai, and Bangalore have held large Pride celebrations.

The 2009 decision decriminalizing homosexual acts had allowed the organization of such events by protecting gay people from being fired because of their sexuality, and has meant that doctors could no longer refuse to treat homosexuals, activists said.

"The vocabulary surrounding us was about pornography, but it became about dignity," said Gautam Bhan, a 33-year-old consultant for a research center in Bangalore, who came out when he was 18.

Gay rights activists have also argued that the current law reflects British colonial standards of morality and not Indian traditions. India's trans-gender community, known as the Hijras, have played a role in its society for hundreds of years.

The 2009 ruling was the result of a case brought by the Naz Foundation, which fought a legal battle for almost a decade. After the ruling, a collective of mostly faith-based groups took an appeal to the Supreme Court.

The Naz Foundation and other groups could now seek a review or a so-called "curative petition" to overturn the Supreme Court's ruling, but these options rarely succeed, said Arvind Narrain, one of the lawyers representing the advocacy groups.

Gay rights protesters held a demonstration on Wednesday in Delhi and some Indians changed their Facebook profile pictures to show two men kissing in a sign of their support for homosexuality.

In the video below, celebrated gay author Vikram Seth reacts to the shocking decision from the India's Supreme Court.

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