13 December 2013
India Reinstates 1861 British Law Outlawing Homosexuality
A division bench composed of two justices of the Indian Supreme Court has reversed the Delhi High Court, as reported here four years ago, regarding India's 1861 British law criminalizing homosexuality. Although this provision is rarely enforced directly, it has been used by the government and various authorities to harass, extort and bully LGBTs in a manner that should otherwise be unlawful.
While many people have the perception of a national supreme court being omnipotent and able to freely strike down laws, most national supreme courts are reluctant to enter into the realm of politics and will sometimes allow otherwise immoral legislation to stand in deference to the elected branches of government. India is not one of those countries. India's Supreme Court has ordered (motorized) tricycle drivers in Delhi to convert to natural gas. It has more or less shut down the iron mining industry because of rampant, systemic corruption and it has banned public officials charged with corruption from running for re-election. The historic battle between the Supreme Court and the Sansad (Indian Parliament) is so intense that it has regularly passed constitutional amendments to undo decisions of the Supreme Court.
But in this case, a two justice division bench of the Supreme Court ruled that only the Sansad had authority to repeal the criminalization of gay sex. And as if on cue, the ruling Congress Party has now announced that the Supreme Court decision's must be challenged! The government had not been the primary proponent of the Court's review but instead an even stranger (for India) coalition of Hindu, Muslim and Christian religious leaders. Apparently Hindus and Muslims savagely killing each other for no reason other than they are Muslim or Hindu is apparently part of the holy order, but gay sex is not.
Since this is such a bizarre and unexpected outcome, it will be interesting to see if the ruling government has the votes in the Sansad to decriminalize sexuality before the right-wing Hindu nationalist party (which recently made gains in local elections) takes over the national government again and moves India again to the reactionary right.
The U.N. High Commissioner for Human Rights Navi Pillay (a former superior court judge in South Africa) said: "The Supreme Court of India has a long and proud history of defending and expanding protection of human rights. This decision is a regrettable departure from that tradition." She noted that criminalizing homosexuality violated the International Covenant on Civil and Political Rights -- India is a signatory to the treaty.
She hoped the Indian Supreme Court would use their own internal review procedures to recall the case before a larger panel of justices -- Justice G.S. Singhvi, who authored the decision also happen to retire on Wednesday, after issuing the opinion.