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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, South Africa

Photo(s) of the day: Gandhi, Mandela bookend Embassy Row in Washington

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On either side of Washington DC’s ‘Embassy Row,’ the dense line of embassies that line either side of Massachusetts Avenue, you could find two very different tributes to perhaps the two most iconic peacemakers of the 20th century — India’s Mahatma Gandhi and South Africa’s Nelson Mandela.India Flag Iconsouth africa flag

At the Indian embassy, dozens of protestors gathered in opposition to the Indian Supreme Court’s decision earlier today that effectively re-criminalizes same-sex conduct, leaving it up to India’s parliament to decriminalize homosexuality.  The decision reverses the 2009 ruling of the Delhi High Court, which interpreted much of Section 377 of India’s penal code unconstitutional.  Read more about the Supreme Court’s landmark decision here.

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Meanwhile, a mile down the way, flowers and tributes to the late former South African president to Nelson Mandela continue to pile up at the South African embassy.  The Mandela statue is relatively new — it was erected only a few months ago.  Read more about how Mandela’s death poses both a challenge and an opportunity for the future of South Africa here.

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Bonus: I saw (but didn’t snap a photograph) former prime minister Kevin Rudd walking out of the Cosmos Club on Massachusetts Avenue. I’m not sure what he’s doing in Washington, but he’d certainly be a welcome addition in a policy role here.

India

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

Germany

As U.S. awaits DOMA decision, Germany’s constitutional court weighs in on gay rights

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By the end of June, the U.S. Supreme Court will render decisions in two of the most important legal cases to affect same-sex marriage in the United States: Hollingsworth v. Perry, which could result in the repeal of California’s Proposition 8, a ballot measure that overturned the state legislature’s enactment of same-sex marriage, and United States v. Windsor, which could strike down the U.S. Defense of Marriage Act.  DOMA, a 1996 law that prohibits same-sex couples from federal benefits of marriage, has been struck down by lower U.S. courts as a violation of the ‘equal protection’ clause of the 14th amendment of the U.S. constitution.  Others have argued that it violates the right of states to determine their own marriage laws and the ‘full faith and credit’ clause of the U.S. constitution that requires states to recognize the law, rights and judgments of the other U.S. states. Germany Flag Icon

Both decisions are among the most highly anticipated opinions of the Court’s summer rulings.

But Germany’s top constitutional court, the Bundesverfassungsgericht, got out in front of the U.S. Supreme Court last week with a landmark decision of its own that in many ways mirrors what proponents of same-sex marriage hope will be a harbinger of the U.S. decision on DOMA.

In a decision that could place pressure on chancellor Angela Merkel in advance of Germany’s federal election in September, the constitutional court ruled that same-sex couples in registered civil partnerships are entitled to the same joint tax filing benefits as those in opposite-sex marriages, exactly the rights that DOMA was originally enacted to prohibit in the United States.  The decision put the fight for German same-sex marriage on the front page of European newspapers in a summer when the parliamentary battles to enact same-sex marriage in the United Kingdom and France have otherwise dominated headlines.

It’s surprisingly in many ways that France and the United Kingdom have been more progressive on same-sex marriage rather than Germany.  Although polls show nearly two-thirds of the British and the French support same-sex marriage, a February 2013 poll showed that three-fourths of Germans support same sex-marriage.  Moreover, UK prime minister David Cameron is the center-right leader of a Conservative Party that faces its most pressing political pressure today from the right, not from the center, and the virulent anti-marriage rallies in France and the widespread opposition to same-sex marriage on France’s center-right means that French president François Hollande’s push for marriage equality, a policy that he campaigned on in 2012, has met significant turbulence.

But Germany’s evolutionary approach to marriage equality has taken a more subdued path through the constitutional court in Karlsruhe as much as through the Bundestag, Germany’s parliament.  Former chancellor Gerhard Schröder and his coalition partner Volker Beck successfully pushed for the enactment of the Life Partnership Act in 2001 when the Sozialdemokratische Partei Deutschlands (SPD, Social Democratic Party) controlled the government in coalition with Beck’s Bündnis 90/Die Grünen (the Greens).  Following the German constitutional court’s blessing of the law in 2002, the Bundestag followed up in 2004 with revisions to the law that increase the rights of registered life partners, including rights to adoption, alimony and divorce, though not parity with respect to federal tax benefits.

Since taking power in 2005, chancellor Angela Merkel has not pushed additional rights for same-sex couples, which puts her at awkward odds with her coalition partners, the Freie Demokratische Partei (FDP, Free Democratic Party), which supports marriage equality and whose former leader Guido Westerwelle (pictured above with Merkel), Germany’s foreign minister and its vice-chancellor from October 2009 to May 2011, is openly gay.

Both Merkel’s Christlich Demokratische Union Deutschlands (CDU, Christian Democratic Party) and the CDU’s sister party in Bavaria, the more socially conservative and Catholic-based Christlich-Soziale Union in Bayern (CSU, the Christian Social Union in Bavaria), have been traditionally opposed to gay marriage, and as recently as March, the CDU and the CSU reaffirmed their opposition to extending tax benefits to same-sex partners, even though the February 2013 poll showed that two-thirds of CDU-CSU supporters favored same-sex marriage outright.

Despite parliamentary inactivity in Berlin, last week’s decision by Germany’s constitution court, however, is just the latest decision from Karlsruhe that has edged same-sex registered partnerships ever closer to full marriage equality.  Continue reading As U.S. awaits DOMA decision, Germany’s constitutional court weighs in on gay rights →

Pakistan

Khan ‘peace rally’ near Waziristan border has implications for politics in Pakistan and beyond

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Imran Khan, the upstart cricket star-turned-politician, led a ‘peace march’ over the weekend, right up to the Waziristan border, in protest of the U.S.-initiated drone attacks designed to target terrorist forces.

Although the march was turned back at the Waziristan border — the Pakistani government literally blocked the road after warning Khan that it could not guarantee the safety of Khan and his entourage — it’s a minor watershed moment for Khan and Pakistani politics, and it marks one of the most high-profile criticisms of what has become an increasingly important element of U.S. ‘Af-Pak’ policy:

The much-publicized rally, which was originally meant to culminate in North Waziristan, ultimately did so in Tank. Amid rousing sloganeering and cheering, Imran Khan delivered his victory speech, thanked his supporters (and the police) and headed back. Everyone heaved a sigh of relief that no untoward incident took place. It’s very rare in Pakistan for a crowd of thousands to have a face-off with law enforcers and avoid a clash. A good precedent was set.

Khan has attacked the drone strikes as a human rights violation and illegal under international law.

Indeed, critics have alleged that the drone program has killed more civilians than intended terrorist targets — and a Stanford/NYU report released in September appears to corroborate that concern.  The U.S. military and the administration of U.S. president Barack Obama, however, claim that the unmanned flights deliver ‘surgical’ strikes against strategic pro-Taliban targets that are destabilizing both Pakistan and Afghanistan, where the U.S. marked the 12th anniversary of its military protest last week — targets that the Pakistani military forces are unwilling or unable to control.

First and foremost, the march has boosted Khan’s exposure even further.  Khan is hoping to make gains in Pakistan’s parliamentary elections expected in February of next year.

Khan, who entered politics in the 1990s, leads the secular, liberal Pakistan Tehreek-e-Insaf (Movement for Justice or PTI, پاکستان تحريک), which is currently polling a strong second place nationally, with 24% against 28% for the conservative, rural-based Pakistan Muslim League (N) (اکستان مسلم لیگ ن,  or the PML-N) of former prime minister Nawaz Sharif.  Just 14% support the governing center-left, urban-based Pakistan People’s Party (اکستان پیپلز پارٹی, or the PPP).

President Asif Ali Zardari, the widower of the late former prime minister Benazir Bhutto, and current prime minister Raja Pervez Ashraf belong to the PPP.  The PPP has been in power since elections in 2008 following the military regime of Pervez Musharraf,  but has recently been bogged down by ever-present corruption accusations, economic malaise and a high-profile constitutional fight over the power of the prime minister.  Continue reading Khan ‘peace rally’ near Waziristan border has implications for politics in Pakistan and beyond →

Pakistan

Everything you need to know about the showdown between the Pakistan People’s Party and the Supreme Court of Pakistan

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So you already know that Pakistan is, well, kind of a hot mess, as far as governance is concerned.

You also know that the Muslim country of 180 million has had, since Partition from India in 1947, a helter-skleter relationship with democratic institutions, with periods of civilian rule interspersed with healthy intervals of autocratic military regimes.  You know that on many vectors, Pakistan falls short of what even its neighbors have accomplished, not just with respect to democracy, but also with respect to rule of law, corruption, terrorism, press freedom and so on.  (Think of Pakistan, perhaps, as a 21st century version of mid-20th century Argentina, or any other South American country where democracy didn’t quite take, despite strong party identification.)

You know that Pakistan is a traditional U.S. ally and a key strategic relationship in the ongoing U.S. efforts in Afghanistan (and along the Af-Pak border), but that Pakistan’s political and military establishment rarely speaks with one voice and that Pakistan’s government more often hinders than helps the U.S. government in its ongoing anti-terror efforts.

But what of the latest political crisis there?  The prime minister has been dismissed by the Supreme Court? And the new prime minister may be dismissed as well? All because of some corruption charges against the president? But isn’t basically every public official in Pakistan corrupt?

It’s understandable that a crisis like this could leave your head spinning in a run-of-the-mill democracy, but in a place like Pakistan, with so many extrapolitical considerations, it’s nearly incomprehensible.

Without further ado, Suffragio presents a quick primer on what’s happened so far in the showdown, and what we might expect in the near future. Continue reading Everything you need to know about the showdown between the Pakistan People’s Party and the Supreme Court of Pakistan →