x Abu Dhabi, UAESunday 21 January 2018

India upholds law that criminalises homosexuality

Supreme court upholds the constitutionality of a 150-year-old law that criminalises gay sex, prompting protests in Delhi and Mumbai. Samanth Subramanian reports

NEW DELHI // The Indian supreme court yesterday upheld the constitutionality of a 150-year-old law that criminalises gay sex, saying it was the responsibility of parliament not the judiciary to change the country’s laws.

Protesters in Delhi and Mumbai immediately denounced the verdict, with one demonstrator, Ashok Row Kavi, a gay rights activist, declaring, “No one is going back in the closet.”

The two-judge panel reversed the 2009 decision of a lower court, which said Article 377 of the Indian penal code violated fundamental human rights and was unconstitutional.

Under the statute, which dates back to the 1860s, when Britain ruled over South Asia, “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” can be punished by up to 10 years in prison.

Yesterday’s successful appeal was brought by a coalition of Hindu, Muslim and Christian groups, as well a member of the Bharatiya Janata Party (BJP) and an astrologer.

The two judges ruled that the lower court had overstepped its remit and that Article 377 was constitutionally valid.

“It is up to parliament to legislate on this issue,” said one of the judges, GS Singhvi, in the court decision.

SK Tijrawala, representing one of the groups that appealed the 2009 decision, welcomed the court’s verdict.

“This is a historic judgment, where the supreme court has ruled in favour of the traditions and values of Indian culture,” Mr Tijarawala said in a statement.

“Indians all over the world are happy today that their heritage has been properly respected.”

The All India Muslim Personal Law Board also praised the court decision, saying it drew a line on what is regarded as acceptable behaviour in India.

“Some people wanted to live their lives in any manner they deemed fit and the supreme court has deemed it wrong,” Zafaryab Jilani, a board spokesperson, told the Ani news agency. “We had pointed out that homosexuality is not only against all religions but against the moral fibre of the country.”

Critics of the ruling said it encourages discrimination and signalled the court’s retreat from ensuring privacy, dignity and equality under law for all Indians.

“It is hard not to feel let down by this judgement, which has taken India back several years in its commitment to protect basic rights,” said G Ananthapadmanabhan, the head of Amnesty International India.

Soon after the verdict was handed down, however, politicians from several parties criticised it.

“We have the prerogative to make laws,” Kapil Sibal, the law minister and Congress member, said. “Let us exercise that prerogative.”

Shivanand Tiwari, a politician from the Janata Dal (United) party, called the earlier high court decision “much more scientific and thoughtful”.

On Twitter, Omar Abdullah, the chief minister of Jammu & Kashmir, wrote: “Questions of morality or religion are not the issue. How can a lifestyle choice be illegal?”