India’s Supreme Court Is Poised to Decriminalize Homosexuality Once and for All
The India homosexuality ban could be a thing of the past, as the country’s Supreme Court prepares to make a groundbreaking ruling that activists hope will be a major victory for LGBT rights in the country of 1.3 billion.
In India homosexuality is prohibited by Section 377 of the penal code, a holdover from British rule. The law was initially repealed in 2009 but reinstated by the Supreme Court four years later. Former Attorney General Mukul Rohatgi told The Independent that Section 377 doesn’t reflect authentic Indian values but rather “the Victorian morals of the 1860s.”
This week, India’s five-justice Supreme Court began hearing arguments on whether to uphold the law, which prohibits “carnal intercourse against the order of nature with any man, woman or animal.”
The court has an chance “to show the liberal world, the Western world, that India is not so far behind,” Mohatgi added. “It would be a signal that India respects human rights, no matter what minority you belong to. The aim is that these people, who have been suffering, will be able to stand shoulder to shoulder with the rest of society.”
While prosecutions aren’t frequent, the law has been used to harass gay people and fuel discrimination and violence against the LGBT community. Earlier this year activist Arif Jafar recounted being jailed and tortured for weeks because of his work in safe-sex education.
“If we claim to be a democracy, then we need to behave like one,” Anjali Gopalan, founder of the Naz Foundation HIV charity, told The Independent. We are denying rights to people who are citizens of our country, based on who they want to live with and who they love.”
Related: These Photos of a South Asian Gay Couple’s Wedding Highlight the Region’s Lack of LGBTQ Rights
Christian groups told the court homosexuality is a disease that can be “cured.” But last week, justice Indu Malhotra said she believed homosexuality “is not an aberration, but a variation,” and that the law does more harm than good. “Because of family pressures and societal pressures, [gay people] are forced to marry the opposite sex and it leads to… mental trauma.”
Lawmakers have attempted several times to repeal Section 377 in parliament with no success. Prime Minister Narendra Modi’s Bharatiya Janata Party says it would leave the matter “to the wisdom” of the high court, but warned the justices against addressing marriage equality, adoption or other issues in their ruling.
Hearings on the issue are expected to conclude next week, with the court expected to give its ruling within the next two months.
Of course, injustice can’t be waved away with a court ruling: Gopalan, who has faced death threats for her work with the LGBT community, says a victory at the Supreme Court would be “the end of one battle, and the start of another” to achieve full equality.
Will repeal of the India homosexuality ban affect laws in other countries? We shall see.