PHOTO BY: Credit: KhushDC.org
377 from Khush DC

Section 377 - an 1860 law criminalizes “carnal intercourse against the order of nature”



Washington, DC – The United States joined global human rights organizations and gay rights activists on Wednesday in expressing concern over a ruling by India’s top court upholding a 153 year old British-era law that criminalizes gay sex and can send same-sex lovers to prison for ten years.

“We oppose any action that criminalizes consensual same-sex conduct between adults. LGBT (lesbian, gay, bisexual and transgender) rights are human rights,” said Jen Psaki, US State Department spokesperson on Wednesday while replying to a question from India America Today.

“Any action that criminalizes consensual same-sex conduct between adults that doesn’t recognize that fundamental freedoms of people include their right to sexual orientation, those are issues that we certainly would be concerned about,” Psaki added.

“The United States places great importance on the protection of human rights and fundamental freedoms of all people. And … that includes lesbian, gay, bisexual, and transgender persons around the world.”

India’s Supreme Court on Wednesday, December 11 reversed a landmark 2009 Delhi High Court order which had decriminalized homosexual acts. The court ruling came a day after visiting Indian Foreign Secretary Sujatha Singh met with US Secretary of State John Kerry in Washington, DC. According to reliable sources, Singh faced questions regarding the gay law ruling when she met US lawmakers on Capitol Hill.

Terming the ruling by India’s Supreme Court, “a black day for freedom in India,” G. Ananthapadmanabhan, the Chief Executive of Amnesty International India, said in a statement, “This decision is a body blow to people’s rights to equality, privacy and dignity.”

Ananthapadmanabhan continued, “It is hard not to feel let down by this judgment, which has taken India back several years in its commitment to protect basic rights.”

Reacting to the decision, Sapna Pandya, President of the Washington, DC-based KhushDC, an advocacy group for South Asian LGBT individuals, said, “No doubt about it, today’s ruling is a setback. But it doesn’t take away from the fact that the recent past has seen promise for LGBTQ rights in not just India, but also other South Asian countries, including Pakistan, Bangladesh, and Nepal.”

“We stand in solidarity with the brave activists in South Asia and worldwide who have taken such huge leaps in recent years and know they will continue the fight for equality in spite of the disappointment we all feel today,” added Pandya.

All Out, an international nonprofit based in New York which works for LGBT rights, also lambasted the decision. The group’s Director of Communications Joe Mirabella said in a statement, “This is a sad day for India and for the world. No one should have to go to jail because of who they are or who they love. We stand in solidarity with India’s human rights community.”

“Sadly this ruling now brings the total number of countries that make it a crime to be gay, lesbian, bi, or trans from 76 to 77,” Mirabella said, adding, “It essential that we bring that number to zero. No person should have to sacrifice their family or freedom, safety or dignity, because of who they are or who they love.”

Overturning a historic ruling by the Delhi High Court in 2009 which had decriminalized consensual same-sex activity between adults, the Supreme Court said that Section 377 – an 1860 law, which criminalizes “carnal intercourse against the order of nature”- was constitutionally valid, and said that the government could take legislative steps to repeal the law.

The Delhi High Court had ruled in 2009 that the outlawing of consensual adult same-sex relations was discriminatory and violated the rights to equality, privacy and dignity set forth in the Indian Constitution.

The case was initially brought by the Naz Foundation, an Indian sexual rights organization. Following the Delhi High Court ruling in 2009, a group of private bodies, including faith-based and religious groups, appealed the decision in the Supreme Court.

India’s central government did not appeal the ruling. The Indian Attorney General told the Supreme Court in March 2012: “The government of India does not find any error in the judgment of the High Court and accepts the correctness of the same.”

Refuting claims that homosexuality was “not Indian,” the Attorney General said, “The introduction of Section 377 was not a reflection of the existing Indian values and traditions; rather it was imposed upon the Indian society by the colonizers due to their moral values.”

According to Amnesty International, in a review of India’s human rights record before the UN Human Rights Council in 2012, the Government of India quoted the Delhi High Court’s decision as proof of its progress on human rights issues.

“The government of India has said that it is in favor of decriminalizing homosexuality. Now is the time to act on its word. Parliament must immediately pass legislation to restore the rights and freedoms that have been denied today”, said Ananthapadmanabhan of Amnesty International India.

Political pundits watching the upcoming general elections in India in April and May do not expect a legislative change in the near future.

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