Indian Supreme Court Bans Gay Sex: What Now?

On the same day that Tarun Tejpal was sent to prison for twelve days for sexual assault, the Indian Supreme Court reversed a lower court’s order that had previously declared Section 377 unconstitutional. Section 377 is a holdover from British rule and criminalizes sexual activity “against the order of nature.” A punishment can include up to life in prison. Upon the reading of the verdict, which you can read in its entirety here, Vakeel Saheba tweeted that “people [were] crying and hugging each other outside [the court]” and that – at one point – she was stopped “by an old lawyer telling me, ‘Ye ghalat hua’” – which she translated for me as “The judgment was wrong.”

And it is a somewhat surprising decision when you sit down and read the judgment and see things like, “Respondent No.1 pleaded that … Section 377 IPC does not   enjoy justification in contemporary Indian society and that the section’s historic and moral underpinning do not resonate with the historically held values in Indian society concerning sexual relations” or “that the section perpetuates negative and discriminatory beliefs towards same sex relations and sexual minorities in general; and that as a result  of that it drives gay men and MSM and sexual minorities  generally underground which cripples HIV/AIDS prevention methods,” and yet the case still swung the other way.

So what now? The decision can be reviewed under Article 137, for one, which states that “the Supreme Court shall have power to review any judgment pronounced or order made by it.” Unfortunately, as Shutapa Paul – who works for The Week, India’s largest magazine – told me, that might be complicated by the fact that Justice Singhvi is retiring. Nevertheless, one of the organizations that filed the initial case – the Naz Foundation – said that they’d be filing an appeal seeking a review.

And the success of Arvind Kejriwal, as The New Yorker recently noted? Will they take up the issue? “Seems unlikely,” Shutapa replied. “Given the fact that homosexual rights are not a populist issue, most parties will prefer to skirt the issue.”

And she might be right: I saw one poll immediately after the decision was announced that “as many as 70 per cent of Indians feel homosexuality must be considered as illegal as opposed to 17 per cent who support legal rights for LGBT” and that “three out of five Indians feel being gay or lesbian is a disease and almost a same percentage of those surveyed says it can be ‘cured.’”

But that not might deter Anand Grover of the Naz Foundation, who told DNA India in a wonderful bit of sarcasm that it was surprising that the India Supreme Court sent the decision back to Parliament, especially when the Supreme Court was willing to rule on which cars could use red lights and which cars could use blue lights.

If there’s any consolation for LGBT advocates, it could be that – as Rahul Singh points out – the Indian Supreme Court doesn’t sit en banc like the U.S. Supreme Court, which makes for less consistency in terms of judgments, which means that their day in court might still come.