India’s Supreme Court re-criminalizes same-sex conduct in LGBT setback

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In a setback for human rights in the world’s largest democracy, the Supreme Court of India early Wednesday re-criminalized same-sex conduct in a decision that directly affects millions of LGBT individuals.India Flag Icon

The court was considering a 2009 decision by the Delhi High Court, Naz Foundation v. Govt. of NCT of Delhi, that found much of Section 377 of the Indian Penal Code unconstitutional.  Section 377 dates from the British colonial era in India — its origin lies in an 1860 law that prohibits ‘carnal intercourse against the order of nature,’ essentially criminalizing same-sex conduction.  When the Delhi High Court handed down its ruling in 2009, it narrowed its reading of Section 377 to exclude adult consensual same-sex conduct, though the law continued to apply to sex with minors and non-sexual conduct.

Today’s decision by India’s Supreme Court, however, invalidates that interpretation, making same-sex conduct once again a criminal offense — think of it as the reverse of the US Supreme Court’s 2003 landmark decision in Lawrence v. Texas, in so much as the Supreme Court of India had the opportunity to decriminalize same-sex conduct in one fell swoop.  Instead, India’s Supreme Court ruled that it was up to the parliament, not India’s courts, to invalidate Section 377.  The effect is to criminalize same-sex relations at a time when most countries are moving toward greater LGBT rights in both judicial and legislative terms.

The 2009 decision was a landmark moment at the time for LGBT activists in India, who believe that the legacy code violates the guarantees to equality, freedom of expression and personal liberty in the Indian constitution.  The Delhi High Court (think of it as a kind of cross between a state supreme court in the United States and the federal DC Circuit Court of Appeals) itself took seven years to hold hearings in the Naz Foundation case, and the verdict was delivered eight years after the case was originally filed.  Here’s a portion of the Delhi Supreme Court’s ruling from 2009:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.  Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

It’s difficult to categorize the state of LGBT rights in a country as diverse as India with over 1.2 billion people across 1.2 million square miles, but LGBT individuals face myriad challenges in a country where same-sex marriage and adoption are not recognized and no anti-discrimination laws exist.  India’s relatively conservative culture means that there’s a lot of opposition to same-sex attraction, both culturally and religiously.  Religious groups, for example, especially within India’s Muslim and Christian communities, applauded today’s decision.

While Section 377 was never regularly enforced, it was nonetheless widely used to harass LGBT individuals.

As supreme courts often like to do, India’s supreme court lobbed the issue back to the elected branch of government:

However, keeping in mind the importance of separation of powers and out of a sense of deference to the value of democracy that parliamentary acts embody, self restraint has been exercised by the judiciary when dealing with challenges to the constitutionality of laws. This form of restraint has manifested itself in the principle of presumption of constitutionality.

But India’s Supreme Court has rarely shied away from overruling the Indian parliament, and it has a record of much more muscular judicial activism than the US Supreme Court — just a day before the Section 377 ruling, the court struck down part of a law regulating red lights on cars.

But gay sex, it seems, was a bridge too far.

To put it in more familiar terms, the court used exactly the kind of argument that led the US Supreme Court and chief justice John Roberts in 2012 to uphold the health care reform legislation that’s become the hallmark achievement of the presidential administration of Barack Obama (in National Federation of Independent Business v. Sebelius).

The difference is the nature of the rights at issue — US constitutional law is highly influenced by the concept that courts should be especially alert to reviewing statutes that are directed at ‘discrete and insular minorities.’  The concept comes from a footnote in an otherwise unmemorable 1938 Supreme Court decision about consumer protections for the sale of milk.  The idea is that minority groups that are small and easily identifiable (especially racial or religious minorities) can be politically weak in the face of majoritarian sentiment, so courts should take a more skeptical look at laws that reduce the rights of such minorities: 

Whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

That notion seems applicable enough in the United States, where over the course of a decade, 28 US states enacted state constitutional amendments banning same-sex marriage.  But it seems especially applicable in India, where mainstream believes remain even more opposed to LGBT rights. The worry is that by putting the issue of Section 377 in the hands of India’s parliament, the Supreme Court has essentially doomed the possibility that same-sex conduct will be decriminalized anytime soon.

The current government, a coalition government led by the center-left Indian National Congress (Congress, or भारतीय राष्ट्रीय कांग्रेस) and prime minister Manmohan Singh, hasn’t taken any steps in the past decade to change Section 377.  Kapil Sibal, India’s minister of law and justice since May, hinted that the government might take up the issue:

It is the Supreme Court’s prerogative to test the constitutionality of the law and their verdict on homosexuality as an offence must be respected by the government, Law Minister Kapil Sibal said Wednesday.  “It is the prerogative of the Supreme Court to judge the constitutionality and validity of the law. The opinion of the Supreme Court must be respected by the government. They have exercised their prerogative now, we shall exercise ours,” Kapil Sibal told reporters outside parliament.

That’s hardly a bedrock commitment, however, especially as India heads into campaign mode.  The Lok Sabha (लोक सभा), the lower house of the Indian parliament, is expected to be dissolved soon in advance of spring 2014 elections.  It’s difficult to imagine that sexual rights will be an issue that the Lok Sabha will prioritize in an election year, which means that consensual same-sex conduct between adults will continue to be criminalized by statue in India for the foreseeable future.  On the other hand, Singh will step down as prime minister, even if Congress and its allies win the spring elections, so he has little to lose — revising Section 377 to decriminalize same-sex conduct would be a strong statement to end Singh’s decade in power.

If the more conservative, Hindu nationalist Bharatiya Janata Party (the BJP, भारतीय जनता पार्टी) wins the election, it seems incredibly unlikely that one of its first legislative acts will be to take up Section 377.

The Naz Foundation, a LGBT rights group in India, will likely seek a ‘curative petition’ to overturn the ruling, but that’s typically a last-ditch effort that rarely prevails.  In a case as high-profile as this, however, negative attention both inside India and internationally could force the Supreme Court to reconsider.

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