India recriminalises homosexuality
India's gay community scrambling after court decision recriminalises homosexuality. After five years of reform, homosexuals face renewed threat of jail.
Back in 2009, Lesley Esteves was dancing in the streets after judges in Delhi decriminalised homosexuality. When the Delhi High Court suspended the draconian Section 377 of the Indian penal code which dated from the days of British rule, India’s lesbian, gay, bisexual and transgender community thought there was no turning back.
Five years on the euphoria has gone. In December, the country’s highest court overturned the lower court’s ruling, once again making gay sex a crime punishable by up to ten years in jail and putting tens of millions of Indians at risk of prosecution or harassment. Last month, that court – which had said gay people in India were just a “minuscule minority” – upheld its decision against an appeal and said it was up to the government to change the law.
But there is little chance for that. While senior figures of the ruling Congress party supported repealing Section 377, the leadership of the main opposition party, which most analysts believe is set to secure power in an upcoming election, do not. As it was, the current parliament held its last session on Friday; it could be years before a new parliament amends the law.
“It was a shock for the whole world, not just for India,” Ms Esteves, who works as a journalist, said of the Supreme Court ruling. “Amidst the euphoria of 2009, I did not imagine the possibility that one day, the Supreme Court would brutally set the Delhi High Court judgment aside and dismiss India’s LGBT people. It’s hard to imagine words more out of sync with the inclusive and progressive Indian constitution.”
The law which criminalises homosexual behaviour was drafted by Lord Macaulay in 1860 and states that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment”.
Campaigners have long complained that while that while there have been few prosecutions during the past 20 years, the law has been used to harass and blackmail gay men. Driving homosexuality underground would make it far harder to counter Aids and provide homosexual men with treatment.
Furthermore, the law is at odds with various articles in India’s constitution which supposedly guarantee the right to life and personal liberty, equality, and which prohibit discrimination.
The Supreme Court decision triggered outcry across India and beyond its borders. The UN’s most senior human rights, official, Navi Pillay, said the decision violated international law and marked a “significant step backwards for India”.
People questioned how the court decision sat with a nation that had long promoted itself as a bastion of tolerance and diversity. While the gay rights movement remains in its infancy, its members believed they were on the right side of history.