Published: December 11, 2013
India’s Supreme Court issued a disgraceful ruling against human rights in reinstating a law that bans gay sex. On Wednesday, the court reversed a landmark 2009 decision by the Delhi High Court that decriminalized sex between consenting adults regardless of their gender.
At issue is Section 377 of India’s Penal Code barring “carnal intercourse against the order of nature,” a holdover from British colonial law dating back to 1861. In practice, this law had largely been used by police to threaten and blackmail gays, lesbians and transgender people.
Following the ruling, India’s crimes bureau stated ominously that it will begin compiling crime statistics under Section 377 as early as next year. Violation of the law is punishable by a fine and up to 10 years imprisonment.
Gay-rights supporters took to the streets in New Delhi in protest, vowing to continue their fight for equal rights and dignity under the law. Human rights groups, including Human Rights Watch and Amnesty International, roundly condemned the Supreme Court decision.
In its 2009 ruling, the Delhi High Court said Section 377 violated the guarantees of equality and privacy in the country’s Constitution. The Supreme Court disagreed. Writing for the court, Justice Ganpat Singh Singhvi threw the issue to lawmakers, stating that Parliament was “free to consider the desirability and propriety of deleting Section 377 I.P.C. from the statute book or amend the same as per the suggestion made by the attorney general.”
The court’s statement inviting the Legislature to amend the law is disingenuous. Given the fractious nature of India’s Parliament, the conservative views of many of its members, and the political stakes in the run-up to general elections next spring, the Legislature is unlikely to take up this issue on its own.
Prime Minister Manmohan Singh now has an opportunity to leave a lasting legacy of progress before his government steps down next spring. His cabinet should act immediately to seek a repeal of Section 377. This 1861 law has no place in a 21st-century democracy.