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Top Indian court upholds colonial-era law criminalizing homosexuality

Wednesday, December 11, 2013

NEW DELHI — India’s Supreme Court on Wednesday struck down a 2009 lower court decision to decriminalize homosexuality, dealing a blow to gay activists who have fought for years for the chance to live openly in India’s deeply conservative society.

The judges said only lawmakers and not the courts could change a colonial-era law criminalizing homosexuality.

Supreme Court in New Delhi.

Supreme Court in New Delhi.

The lesbian, gay, bisexual and transgender community across India reacted to the surprise decision with defiance.

“We cannot be forced back into the closet. We are not backing off from our fight against discrimination,” said Gautam Bhan, an activist who had petitioned the court.

After the ruling, dozens of activists outside the court began crying and hugging each other in consolation.

“This is a very sad day for us, we are back to square one in our fight for the democratic rights of the gay community,” said Ashok Row Kavi of the activist group Humsafar Trust.

Lawyers and supporters of gays, lesbians and transsexuals vowed to continue pressing for the removal of the law, which they say encourages discrimination, even if it is rarely invoked by prosecutors.

“We feel very let down,” said lawyer Anand Grover, who had argued the case on behalf of the advocacy group NAZ Foundation. “But our fight is not over and we will continue to fight for the constitutional right.”

He said the foundation would ask for the Supreme Court’s decision to be reviewed.

The law, dating back to the 1860s, when Britain ruled over South Asia, states that “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.

The 2009 New Delhi High Court ruling, which said the law violated fundamental human rights, infuriated conservatives and religious groups who say homosexuality represents a threat to traditional Indian culture.

In a rare alliance, the groups – including the All India Muslim Law Board, Christian groups and Hindu spiritual leaders – argued that gay sex is unnatural and that India should maintain the law.

Amod Kanth, head of the Prayas organization for children’s welfare, one of India’s largest civic groups, cheered Wednesday’s ruling and said banning homosexuality is key to ensuring children’s normal development and protecting their rights to family.

“Only a man and a woman constitute a family and contribute for the holistic development of a child, which is not possible without a father and a mother,” Kanth told the Press Trust of India news agency.

Activists have long argued that the law encourages discrimination and leaves gays, lesbians and bisexuals vulnerable to police harassment or demands for bribes. In a country where arranged marriage is still largely the norm, many gays hide their sexual orientation from friends and relatives.

Acceptance is slowly growing, though, particularly in b ig cities such as New Delhi and Mumbai. In the last few years, activists have staged large gay pride parades featuring rainbow-colored flags and banners, joyful songs and dancing through the streets.

The government, meanwhile, has begun acknowledging India’s transgender – or hijra – community, the origins of which go back millennia to a time when transsexuals, eunuchs and gays held a special place in society backed by Hindu myths of their power to grant fertility.

In 2009, the government allowed them to register to vote as “others,” rather than as men or women. And in 2010, a new “third gender” category was added to the national census.

Law Minister Kapil Sibal said little about Wednesday’s verdict beyond agreeing that the “legislature is the final arbiter of what law should be.”

If the issue comes up in Parliament, he said, “we will take it up.”

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86 more reader comments:

  1. What!!!

    Posted on Wednesday, December 11, 2013 at 8:29am
  2. Ya know, it seems like nothing brings together the faithful like discriminating against minorities.

    Posted on Wednesday, December 11, 2013 at 8:31am
  3. ya a lot of Indians are homophobes. Many of my friends in India (highly educated people mind you) didn't even know that being gay was biological and thought i was something you can just "turn on." it took me a good 20 mins to explain to them why they were wrong and they were still skeptical... It's quit sad but much of India is still very conservative, I'm talking about being disowned because you married someone from a different state (despite being in the same cast). It's quite sad really.

    Replied on Wednesday, December 11, 2013 at 8:45am
  4. WTH, India?!

    Posted on Wednesday, December 11, 2013 at 8:32am
  5. Sad thing is its not new knews..

    Posted on Wednesday, December 11, 2013 at 8:34am
  6. Where’s the dislike button?…

    Posted on Wednesday, December 11, 2013 at 8:35am
  7. Very sad for the LGBT community in India.

    Posted on Wednesday, December 11, 2013 at 8:35am
  8. Doesn’t India want to be in the Twenty First Century and break the chains of the Colonial Era?

    Posted on Wednesday, December 11, 2013 at 8:36am
  9. Of course the law is unconstitutional – it was based on British law long overturned and it contravenes the Universal Declaration of Human Rights which India has ratified. The Declaration specifically refers to the rights of minority groups. Lawyers should challenge this.
    http://www.un.int/india/india_and_the_un_hr.html

    Posted on Wednesday, December 11, 2013 at 8:38am
  10. Come on… Get with the times

    Posted on Wednesday, December 11, 2013 at 8:38am
  11. God Dammit! :(

    Posted on Wednesday, December 11, 2013 at 8:39am
  12. This is unbelievable!

    Posted on Wednesday, December 11, 2013 at 8:39am
  13. oh india…why when your own lord krisna had over 30000 wives…..

    Posted on Wednesday, December 11, 2013 at 8:41am
  14. ugh

    Posted on Wednesday, December 11, 2013 at 8:42am
  15. I believe they are talking about American Indian…which is very sad for those who live outside their reservation and will not get the blessings of their families.

    Posted on Wednesday, December 11, 2013 at 8:42am
  16. They are talking about the country, India. The supreme court is in New Delhi.

    Replied on Wednesday, December 11, 2013 at 9:02am
  17. And I thought India was an “enlightened” nation… :(

    Posted on Wednesday, December 11, 2013 at 8:43am
  18. The lawyers could help to change this. You’ll probably have to bribe them first.

    Posted on Wednesday, December 11, 2013 at 8:44am
  19. more like bribe the supreme court...(which is probably possible considering how corrupt India is)

    Replied on Wednesday, December 11, 2013 at 8:47am
  20. Talking about India. So sad that people can’t just let us be.

    Posted on Wednesday, December 11, 2013 at 8:44am
  21. After being in India. For the life of me, I can’t understand why people see it as such an enlightened nation. In many regards they are held back, and one if the biggest culprits is religion.

    Posted on Wednesday, December 11, 2013 at 8:46am
  22. I agree Vinay Snoop-Biligiri

    Posted on Wednesday, December 11, 2013 at 8:51am
  23. Sadly, it is a different nation and set of laws. *THIS IS WHY WE NEED TO REMEMBER THAT OUR NATION WAS BASED ON AN OPEN BORDER POLICY, so that people could find freedom and happiness.*

    Posted on Wednesday, December 11, 2013 at 8:51am
  24. It’s not right, why does the world get to decide who has the chance to be happy,
    Equality has been disrespected and disregarded for so many years!!!,there are signs in some places of our world that show they are changing with the times, but than you have a big part of the population that is destroying the lives of so many people that don’t have a voice to state that they are human and have a right to be happy and with the person they love, regardless of their gender!!!

    Posted on Wednesday, December 11, 2013 at 8:53am
  25. I guess a trip to INDIA will be postponed.

    Posted on Wednesday, December 11, 2013 at 8:59am
  26. Why don’t you worrie of you and not India. ..fantastic individuals I have meet

    Posted on Wednesday, December 11, 2013 at 9:11am
  27. How strange!

    Posted on Wednesday, December 11, 2013 at 9:14am
  28. What you expect. A fucked up society with narrowness. A patriarchal and a hypocrite society will never change. A society that has not been able to provide women rights will ever bring rights to gays…I do not think so.

    Posted on Wednesday, December 11, 2013 at 9:20am
  29. Sad,, very sad.

    Posted on Wednesday, December 11, 2013 at 9:20am
  30. A bloody shame i thought they were smarter then that

    Posted on Wednesday, December 11, 2013 at 9:23am
  31. Fuck them anyway who really cares about a bunch of curry munchers

    Posted on Wednesday, December 11, 2013 at 9:32am
  32. a sad disappointment. i’ve had such high hopes for india.

    Posted on Wednesday, December 11, 2013 at 9:34am
  33. Do not like :(

    Posted on Wednesday, December 11, 2013 at 9:38am
  34. :( so sad for the people who just want to live their lives in peace and happiness not hurting anyone else :( unlike the people who still mutilate and beat women and their daughters, force men and women into loveless marriages tsk tsk shameful.

    Posted on Wednesday, December 11, 2013 at 9:42am
  35. They can have there call support jobs. Thanks for calling Dell.

    Posted on Wednesday, December 11, 2013 at 9:43am
  36. No rights

    Posted on Wednesday, December 11, 2013 at 9:52am
  37. Paul Anderson they are clearly talking about the country. American Indian society is actually very open to homosexuality.

    Posted on Wednesday, December 11, 2013 at 9:58am
  38. So sad.

    Posted on Wednesday, December 11, 2013 at 10:08am
  39. So they have a prob with homosexuality,then how abt those Assholes who rapes thier women? Nah,not a prob for them,its been a part of thier day to day life…Indians! Duh!

    Posted on Wednesday, December 11, 2013 at 10:10am
  40. Give me a break India…grow up already. You have devastating issues to focus on…homosexuality is Not one. Like getting you people OFF the streets.

    Posted on Wednesday, December 11, 2013 at 10:19am
  41. DUMB!

    Posted on Wednesday, December 11, 2013 at 10:19am
  42. Idk if they have a sense of individualism there, or if they have a concept of marrying for love.

    Posted on Wednesday, December 11, 2013 at 10:25am
  43. Too much stereotyping about Indians in this thread. A few people on a court made a decision, not a whole country or every individual in it. Better logic, please!

    Posted on Wednesday, December 11, 2013 at 10:26am
  44. Today i feel shame calling my self an Indian. They took our dignity Snatched our privacy

    Posted on Wednesday, December 11, 2013 at 10:35am
  45. What Would Ghandi Do?

    Posted on Wednesday, December 11, 2013 at 10:48am
  46. He would've committed suicide (sarcasm intended) long back the way the Indian Politicians and the Judicial System has led India so far.

    Replied on Wednesday, December 11, 2013 at 1:51pm
  47. He would have been agred. He himslf was with equality :-( black day for us :’(

    Posted on Wednesday, December 11, 2013 at 10:50am
  48. Being gay = being criminal
    # am Indian :’(

    Posted on Wednesday, December 11, 2013 at 10:54am
  49. Battle just started
    we will win it

    Posted on Wednesday, December 11, 2013 at 10:58am
  50. This Goverment cannot feed house educate or provide medical care for all it’s people! Nelson Mandela and Obama support human rights for gays shame on these bigots LBGT rise up and organize defend yourselves !

    Posted on Wednesday, December 11, 2013 at 11:16am
  51. Thats pretty sad then considering the amount of gay people in their society …the amount of gay rape and straight rape ….what are they going to do ? Make it a crime???….when are these people going to enter the 21st Century???????

    Posted on Wednesday, December 11, 2013 at 11:29am
  52. people need to wake up and see that people are people and love is love and thats it.

    Posted on Wednesday, December 11, 2013 at 11:40am
  53. As an Indian, I so wanna get rid of being an Indian right now.
    better to be dead than celebrate the next independence day.

    Posted on Wednesday, December 11, 2013 at 11:55am
  54. Where is Ghandi when you need him…Love and Courage to our brothers and sisters in India.

    Posted on Wednesday, December 11, 2013 at 12:12pm
  55. :-(

    Posted on Wednesday, December 11, 2013 at 12:44pm
  56. A law that came from England in the first place. Gah.

    Posted on Wednesday, December 11, 2013 at 1:06pm
  57. But gang raping women is fine . This world is terrible and it’s because men are in power. And yes I’m a Man. When more women gain power in India, India will become a better place

    Posted on Wednesday, December 11, 2013 at 1:21pm
  58. How incredibly sad.

    Posted on Wednesday, December 11, 2013 at 1:28pm
  59. Very sad!!!

    Posted on Wednesday, December 11, 2013 at 1:32pm
  60. Its seems very few n that country disagree…..

    Posted on Wednesday, December 11, 2013 at 1:43pm
  61. I find it amazing that thisis tge save civilization that published the khama sutra

    Posted on Wednesday, December 11, 2013 at 1:44pm
  62. Thank you so much for posting this. This is, yes, one of the shameful days in the history of India. But one thing India has with the West is it’s Government does bend to the World’s attention. Especially that of the US and the EU (read the UN). If we can keep the momentum of this ‘shaming’ the Constitution, Indian Government and the shameful SC has to get back it’s act together.

    Posted on Wednesday, December 11, 2013 at 1:50pm
  63. Sad how these starving underdeveloped countries still have their heads up their ass

    Posted on Wednesday, December 11, 2013 at 1:50pm
  64. The Mahatma wouldn’t approve !!

    Posted on Wednesday, December 11, 2013 at 2:01pm
  65. What about the GANG RAPE epidemic and ‘honor killings’ where they kill the victim to bring honor back to the family. ASSHOLES.

    Posted on Wednesday, December 11, 2013 at 2:03pm
  66. Backwards and hateful country ..l

    Posted on Wednesday, December 11, 2013 at 2:12pm
  67. sad. . .

    Posted on Wednesday, December 11, 2013 at 2:18pm
  68. so far behind the times, no wonder so many life in cardboard boxes

    Posted on Wednesday, December 11, 2013 at 2:37pm
  69. Sad, but it will change.

    Posted on Wednesday, December 11, 2013 at 2:38pm
  70. What a shame….

    Posted on Wednesday, December 11, 2013 at 2:48pm
  71. Ha! Figures

    Posted on Wednesday, December 11, 2013 at 2:54pm
  72. Now that gay people are able to Marry in certain US states I have noticed those states haven’t changed or fallen apart !! What did people think ?

    Posted on Wednesday, December 11, 2013 at 2:58pm
  73. They are still shitting in holes and wiping asses with their hand. Did we expect more!

    Posted on Wednesday, December 11, 2013 at 3:06pm
  74. What the use of the dunking chair to determine guilt or innocense of a witch?

    Posted on Wednesday, December 11, 2013 at 3:24pm
  75. I am so horrified and saddened by this. May they be strong over there. Someday!

    Posted on Wednesday, December 11, 2013 at 3:42pm
  76. this is really sad.

    Posted on Wednesday, December 11, 2013 at 3:44pm
  77. This breaks my heart for our Indian homos… In so many counties, selected States etc. We’ve come so far… Yet in others we can still take sooo many steps back. Hopefully its just a matter of time before all this stupidity is behind us ALL.

    Posted on Wednesday, December 11, 2013 at 3:58pm
  78. Lame!
    LGBT divest from these countries.
    Including our very own discriminating states.

    Posted on Wednesday, December 11, 2013 at 4:22pm
  79. Mr.Gandhi would b so proud, I just googled him it says he’s bisexual/racist….what a combo haha!Those slumdog lawmakers…….

    Posted on Wednesday, December 11, 2013 at 4:48pm
  80. two steps forward, one back… that’s the way the truth wins. At the end ALL will have learned.

    Posted on Wednesday, December 11, 2013 at 5:14pm
  81. WTF!

    Posted on Wednesday, December 11, 2013 at 5:21pm
  82. Was going to visit india for a possible business venture, not now

    Posted on Wednesday, December 11, 2013 at 6:43pm
  83. Boo

    Posted on Wednesday, December 11, 2013 at 7:17pm
  84. Smh

    Posted on Wednesday, December 11, 2013 at 9:45pm
  85. So apparently India wants to continue to be thought of as the nation who brought you cow dung. Shameful. Uncivilized.

    Posted on Wednesday, December 11, 2013 at 9:55pm
  86. interesting siince UK was the colonial master and has reverse course on this matter…theINDIAN COURT decides to move the country BACKWARD t ocolonial actions….

    Posted on Wednesday, December 11, 2013 at 10:14pm