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India's Supreme Court Re-Criminalizes Gay Sex

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In a shocking decision, the Indian Supreme Court has reversed the July 2009 ruling of the Delhi High Court decriminalizing gay sex between consenting adults. In doing so, the Indian Supreme Court has re-criminalized gay sex in India, rendering almost 20 percent of the global LGBT population illegal.

Overturning a High Court decision, the Indian Supreme Court upheld Indian Penal Code 377, an archaic and barbaric law that criminalizes "homosexual" acts:

377. Unnatural offenses -- Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Western media and LGBT organizations are likely to demonize India and Indians after this ruling, which does not make life easier for Indians who are gay and lesbian abroad, and conveniently casts the West as an arbiter of freedom. Anthopologist Akshaye Khanna articulates this quite well:

We are seeing, in several parts of the world, a cynical appropriation of the discourse of sexual rights and sexuality by right-wing and reactionary agendas. In Western Europe, North America and Israel, we see the phenomenon of 'homonationalism', where LGBT discourse is being used in deeply racist -- usually Islamophobic -- groups. In East Africa, the question of sexuality has come to be the central question in discourse about the nation -- where notions of 'Africanness' have come to be tied to the position on homosexuality. This centering of the question of sexuality is always a way of diverting attention from political and economic questions relating to the control over natural resources, or instances of corruption.

While we mourn the ruling, let's not forget that Indian Penal Code 377 is a relic of British rule and colonialism. The Supreme Court ruling is just a reminder that the Indian people cannot rely on courts to strike down an injustice rooted in colonial oppression, and that colonial ideas remain ingrained in a so-called post-colonial country.


However, colonial-era law or not, there is no excuse for this decision from the Indian Supreme Court, which should have outlawed discrimination, instead of punting the question of sodomy to the Indian parliament. Thus far, the Indian parliament has remained non-commital on the issue, sparking more fear and outrage across the country.

While lawyers are seeking another review by the Supreme Court, reports are slowly coming in on how this impacts Indians who are openly gay, lesbian or bisexual in India:

There have been arguments that upholding article 377 will lead to further alienation of LGBT persons and groups, and cause a severe setback to HIV/AIDS prevention efforts, especially among men who have sex with men (MSM). Gay rights NGO Naz Foundation, which filed the petition to decriminalise gay sex with the Delhi High Court, says this law has been used to blackmail and perpetuate violence against sexual minorities.

Now that being gay is illegal in India, perhaps the U.S. should stop detaining gay, Indian asylum seekers such as Kumar, and work to parole them. If you already live in the U.S. and fear for your life as an LGBT person in India, please see a competent immigration attorney or contact Immigration Equality in the U.S. For asylum cases already adjudicated or under adjudication, please see a legal professional about filing a motion to reopen and/or changed country conditions reports.

It appears that many Indians are outraged by the ruling, but also keeping it in perspective. Section 377 has rarely been used to criminalize gay persons in India but there are many enforced laws on the books that cause less national and international outrage, such as Karnataka Police Acts, which criminalizes all hijras in the state. Perhaps, our energies here are better spent taking outrage and pouring it into fighting the threats and daily assaults against the Indian people that are far more real and tangible than this poor Supreme Court decision.

I believe this is a set-back for democracy in India. But I also know that the Indian people, irrespective of their sexuality, are joining hands to protest this ruling. Sometimes, a defeat is vital and necessary for social change, and to ultimately pave the way to victory.