India bans gay love
December 12, 2013
India’s Supreme Court Restores an 1861 Law Banning Gay Sex
NEW DELHI — The Indian Supreme Court reinstated on Wednesday a colonial-era law banning gay sex, ruling that it had been struck down improperly by a lower court.
The 1861 law, which imposes a 10-year sentence for “carnal intercourse against the order of nature with man, woman or animal,” was ruled unconstitutional in a 2009 decision. But the Supreme Court held that only Parliament had the power to change that law.
There is almost no chance that Parliament will act where the Supreme Court did not, advocates and opponents of the law agreed. With the Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in ascendancy before national elections in the spring, the prospect of any legislative change in the next few years is highly unlikely, analysts said.
Anjali Gopalan, founder of a charity that sued to overturn the 1861 law, said she was shocked by the ruling.
“This is taking many, many steps back,” Ms. Gopalan said. “The Supreme Court has not just let down the L.G.B.T. community, but the Constitution of India.”
S. Q. R. Ilyas, a member of the All India Muslim Personal Law Board, which filed a petition in support of the reversal, praised Wednesday’s ruling.
“These relationships are unethical as well as unnatural,” he said. “They create problems in society, both moral and social. This is a sin as far as Islam is concerned.”
India has a rich history of eunuchs and transgender people who serve critical roles in important social functions and whose blessings are eagerly sought. Transgender people often approach cars sitting at traffic lights here and ask for money, and many Indians — fearing a powerful curse if they refuse — hand over small bills.
Despite this history, Indians are in the main deeply conservative about issues of sexuality and personal morality. National surveys show that Indians widely disapprove of homosexuality and, on average, have few sexual partners throughout their lives.
The pressure to marry, have children and conform to traditional notions of family and caste can be overwhelming in many communities. Indian weddings are famously raucous and communal affairs. So gay men and women are often forced to live double lives.
Asian nations typically take a more restrictive view of homosexuality than Western countries. In China, gay sex is not explicitly outlawed, but people can be arrested under ill-defined laws like licentiousness.
The law banning homosexuality is rarely enforced in India, but the police sometimes use it to bully and intimidate gay men and women. In rare cases, health charities that hand out condoms to gays to help prevent the spread of H.I.V. and AIDS have had their work interrupted because such efforts are technically illegal under the law.
But inspired by gay rights efforts elsewhere, activists in India have in recent years sought to assert their rights, holding gay rights marches and pushing for greater legal rights and recognition.
As part of this effort, the Naz Foundation, a gay rights advocacy group, filed suit in 2001 challenging the 1861 law, known here as Section 377. After years of wrangling, the group won a remarkable victory in 2009, when the Delhi High Court ruled that the law violated constitutional guarantees for equality, privacy and freedom of expression.
India’s judges have sweeping powers and a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, closed much of the country’s iron-ore-mining industry to cut down on corruption and ruled that politicians facing criminal charges could not seek re-election.
Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.
But legalizing gay sex was one step too far for India’s top judges, and in a rare instance of judicial modesty they deferred to India’s legislators.
India’s central government had offered conflicting arguments during the many years of wrangling around the case. But Indira Jaising, an assistant solicitor general of India, said in a televised interview that she was surprised that the court had decided to punt on the underlying legal case.
“They have never been deterred by the argument that the government, the legislature or the executive has not done this or that on other policy matters,” she said.
(source, thank you http://www.nytimes.com/ )