Disappointment in India’s Ruling on Section 377 IPC

BbMqq6uCQAAHoPkA ruling by India’s Supreme Court making consensual same-sex conduct between adults a criminal offence marks a black day for freedom in India, Amnesty International India said Wednesday.

“This decision is a body blow to people’s rights to equality, privacy and dignity,” said G. Ananthapadmanabhan, Chief Executive, Amnesty International India. “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.”

The Supreme Court overturned 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 – 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 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.”

The following joint statement was put forth by Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners including parents of LGBT persons, mental health professionals, academics and law professors.

We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. The decision by overturning the historic Delhi High Court judgment which recognized that Lesbian, Gay, Bisexual, Transgender (LGBT) persons are full citizens of India, attempts to stem the tide of history. By overturning the Naz Foundation judgment, the Supreme Court has, in one fell stroke again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’. The judgment of the Supreme Court is a unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment. It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence and harassment.

It is a tragedy that this judgment forgets the vision of the founders of the Indian republic which was so eloquently captured by the Delhi High Court. By re-criminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru. It equally abandons the principle of constitutional morality (ie majorities dont have a charter to discriminate against minorities purely because they are majorities) articulated by Dr. Ambedkar which is the cornerstone of a diverse and plural nation.

The judgment is thus a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognized and that equal treatment is a non negotiable element of the world’s largest democracy. In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.

This decision today along with the decisions upholding the emergency and legitimizing rape marks the lowest ebb in the illustrious history of the Supreme Court. In 1975 in ADM Jabalpur v. State of Madhya Pradesh, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathuras case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law.

Hard as this decision is and difficult as the road forward may be, we draw strength and inspiration from ordinary LGBT persons who will not allow this to affect the way they lead their lives. In the course of the last ten years or so, LGBT persons have begun to lead their lives openly and publicly proclaiming their claim to equal citizenship. The page of history has turned and no power on earth can deny LGBT persons the right to freedom, equality and dignity.

We proclaim that inspite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice. We pledge to continue this struggle with redoubled vigour till such time that Section 377 is consigned to where it belongs- the dustbins of history.

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