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India

Is there a potential parliamentary path to amending Section 377 in India?

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Sonia Gandhi, the leader of India’s largest party, and a massively influential voice in Indian government, has strongly denounced the Indian Supreme Court’s ruling on Section 377 of the Indian penal code, which effectively re-criminalized same-sex relationships yesterday.India Flag Icon

The Supreme Court rejected the earlier 2009 decision of the Delhi High Court, which had interpreted that Section 377 violated several rights guaranteed under India’s constitution, thereby effectively decriminalizing same-sex conduct.  India’s Supreme Court yesterday instead ruled that it was up to India’s parliament, not its judiciary, to address Section 377.

Gandhi forcefully called on India’s parliament to take up the issue by amending Section 377 in a way that makes it clear that she believes same-sex conduct should not be criminalized:

“The High Court had wisely removed an archaic, repressive and unjust law that infringed on basic human rights enshrine din our Constitution. This Constitution has given us a great legacy, a legacy of liberalism of openness, that enjoin us to combat prejudice and discrimination of any kind. We are proud that our culture has always been an inclusive and tolerant one. The Supreme Court also suggested another course. I hope the Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those affected by this judgement.”

As the leader of the governing Indian National Congress (Congress, भारतीय राष्ट्रीय कांग्रेस), her strong condemnation makes it possible that India’s parliament just might enact a legislative fix.

Gandhi’s statement cleared the way for several high-profile members of India’s government to attack the decision.  Finance minister P Chidambaram said he was extremely disappointed with the decision, and he argued that the decision, by upholding a law enacted in 1860, embodies  colonial-era reasoning.  Kapil Sibal, India’s minister for law and justice, after a somewhat non-committal statement yesterday, today issued a call clearly supporting government action to neutralize the Supreme Court’s decision:

“I am disappointed, and, it is unfortunate that the Supreme Court has upheld the legality of Section 377. The High Court was right on this issue. Right now, there are several options before the government, and, we are exploring all of them. This government believes in firm and quick action, and, we will do that. We will adopt a policy that will provide relief at the earliest,” he said.

Congress, which likes to wrap itself in its legacy as the party that delivered Indian to independence in 1947 under Jawaharlal Nehru, a leader of the independence movement and later, India’s first prime minister, would jump at the chance to attack Section 377, above all, as a relic of Victorian-era repression inflicted upon India by its British colonial rulers.

Fresh off its massive political victory in regional elections earlier this month in Delhi, the anti-corruption Aam Aadmi Party (AAP) also announced its disapproval of the decision and its support for repealing or amending Section 377.

In contrast, the center-right Hindu nationalist Bharatiya Janata Party (the BJP, भारतीय जनता पार्टी) and Narendra Modi, the chief minister of Gujarat state, and the BJP’s prime ministerial candidate in next spring’s parliamentary elections, have been silent since yesterday’s decision.  Sushma Swaraj, the BJP opposition leader in the Lok Sabha (लोक सभा), the lower house of India’s parliament, has called for an all-party meeting to determine whether there’s support to amend Section 377 in the Lok Sabha.

While Muslim and Christian groups have been more active on Section 377 in India than Hindu groups, the conservative BJP doesn’t exactly fit the mould of a party willing to take a progressive stand in favor of LGBT rights.  Baba Ramdev, a top Indian yoga guru, and a leading Modi supporter, has been outspoken in his virulent opposition to homosexuality.

Either way, Gandhi and Congress will find that time is rapidly running out, with the Lok Sabha expected to be dissolved next spring in advance of parliamentary elections that must be held before May 2014.

While Congress could push to amend 377 through legislative action, there’s a chance that the government could also support a ‘curative petition’ that calls on the Supreme Court to reconsider its ruling — such petitions rarely succeed, but such petitions rarely have the full support of Sonia Gandhi behind them.

Both the Congress-led government and the BJP have at least some reason to pull together to support legislation essentially decriminalizing same-sex conduct (once again) in India.  Continue reading Is there a potential parliamentary path to amending Section 377 in India? →

India

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

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indiansupremecourt

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. Continue reading India’s Supreme Court re-criminalizes same-sex conduct in LGBT setback →