India’s Supreme Court Refuses to Reconsider Verdict Recriminalizing Homosexuality
January 28th, 2014
Last December, India’s Supreme Court reinstated a colonial-era sodomy law criminalizing same-sex relationships by overruling a High Court decision four years earlier which struck down the law as unconstitutional. Today, the Supreme Court turned back a request for it to reconsider its decision.
On Tuesday, a bench of Justices H.L. Dattu and S.J. Mukhopadhaya dismissed the review petitions observing that there are no grounds to interfere. In its review petition the Centre had assailed the December 11 judgment contending that law must reflect social change and the aspiration of the society and not operate on vacuum. The review petitions were dismissed in the chamber.
In view of the dismissal of review petitions the next option for the Centre and others is to file a curative petition, which will be heard by a minimum of four senior-most judges and a maximum of five judges.
India’s colonial-era law provides a maximum term of ten years’ imprisonment.
Indian Supreme Court to reconsider sodomy ruling
January 27th, 2014
In December, a two-judge panel of India’s Supreme Court ruled that the country’s Colonial Era law against sodomy, Section 377, was constitutionally permissible. The ruling was issued on the day one of the judges retired.
The government of India, along with many organizations, requested that the Court revisit that decision. Tomorrow they will decide whether to do so: (TimesofIndia)
The Supreme Court will tomorrow take up petitions filed by Centre and rights activists seeking review of its verdict declaring gay sex an offence punishable up to life imprisonment.
A bench of justices H L Dattu and S J Mukhopadhaya will take up the petition in chamber to decide whether the verdict needs to be re-looked or not.
Indian government requests court revisit sodomy law ruling
December 21st, 2013
The Indian government has filed a petition in the Supreme Court asking it to review its decision to reinstate a 153-year-old law that criminalises homosexuality.
The government asked the court to review its order saying it believed it “violated the principle of equality”.
BJP supports reinstatement of India’s Section 377
December 13th, 2013
The leader of the center-right political party in India, Bharatiya Janata Party (BJP), has announced support for the newly-reinstated sodomy laws. (Telegraph of India)
BJP president Rajnath Singh today said his party “unambiguously” endorsed the re-criminalisation of gay sex — the first conclusive statement from the party that makes the legislative option difficult for the UPA.
“We will state (at an all-party meeting if it is called) that we support Section 377 because we believe that homosexuality is an unnatural act and cannot be supported,” Rajnath Singh told The Telegraph tonight.
The United Progressive Alliance (of which The Congress is the leading party) has about 261 of 543 seats in Parliament. National Democratic Alliance (of which BJP is the leading party) has about 151 seats. So any legislation may be determined by smaller parties.
India may not keep its sodomy laws
December 13th, 2013
Indian gays are angry and dismayed over the Indian Supreme Court’s decision to reinstate sodomy laws and have taken to the streets. But there is another somewhat-unexpected group that also seems to feel betrayed and upset by the ruling: Indian politicians.
In July 2009, when the New Delhi Court ruled that the colonial era sodomy laws were a violation of the Constitution, there was little formal objection. In September of that year Prime Minister Manmohan Singh decided to let the decision apply to the rest of the nation and the government and the political parties heaved a huge sigh of relief. While they recognized that individual rights demanded that the laws be lifted, they also knew that doing so would anger various conservative or religious factions. So they stayed silent on the issue, did not appeal the decision, and were happy that the courts had taken it off their shoulders.
But a collective of religious groups appealed and, to the surprise of nearly everyone, the courts overturned the New Delhi decision, stating that the law was constitutional and that if it sodomy laws were to be abolished it would be up to the legislature.
So now legislators and politicians are back in an uncomfortable position. They are made even more so by the near-universal outcry of the nation’s newspapers. (Caveat: I’m judging this by English-language papers. While Hindi is the official language of India’s government, English is also has official status and is the language of business, journalism, and the judiciary and is the common language across India’s many regional dialects.)
Now it appears that the government may channel the outrage to try and reverse the high court’s decision – especially if they can do so without actually passing laws themselves.
From the Times of India (the world’s largest-selling English language newspaper)
“The government is considering all options to restore the (Delhi) high court verdict on (Section) 377 (of IPC). We must decriminalize adult consensual relationships,” law minister Kapil Sibal said.
Finance minister P Chidambaram said the Supreme Court ruling was “wrong” and all options would be looked at to set right the Supreme Court order.
Terming the judgment “disappointing”, he said the court should have applied “current social and moral values” in the case.
He said the government should file a review or curative petition and that the matter should be heard by a five-bench judge.
And the nation’s most influential politician is also on board.
Amid an uproar over the Supreme Court verdict on gay rights issue, Congress chief Sonia Gandhi on Thursday said she was disappointed that the apex court and hoped Parliament would address the matter.
“I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement,” the UPA Chairperson said.
It would be very difficult to get the law reversed in Parliament, but if the request for judicial review is not successful, it may be pursued. India is a significant player in the global marketplace and is determined to be a modern and progressive nation and while the culture is still largely homophobic, recent years have shown an increase in tolerance for homosexuality in India and the surrounding region.
Acceptance and Legality
December 11th, 2013
Georgetown University’s Eric Voeten looks at comparisons between social acceptance of homosexuality and legality. (WaPo)
Voeten’s interesting article discusses how international pressure impacts nations with low tolerance and how the decision by India’s courts could have challenging consequences.
“A Great Day for Prejudice and Inhumanity”
December 11th, 2013
So says the respected novelist, poet, and leading LGBT rights campaigner Vikram Seth to one of India’s leading commercial broadcasters:
Indian human rights advocates are calling today a “black day” following the country’s Supreme Court decision to reinstate the country’s colonial era sodomy law. In 2009, the Delhi High Court ruled that the 153-year-old law, known as Section 377, was unconstitutional, and for the next four years LGBT people in a country representing more than 17% of the world’s population were free from the threat of arrest and imprisonment for up to ten years. Today’s Supreme Court decision reinstates Section 377 and throws the whole issue to Parliament, and has shocked human rights advocates in India and around the world. Pink News has reaction:
“Such a decision was totally unexpected from the top court. It is a black day,” said Arvind Narrain, a lawyer for the Alternative Law Forum gay rights group.
“We are very angry about this regressive decision of the court.”
Ashok Row Kavi, of the activist group Humsafar Trust, said: “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.”
…”One would never expect the supreme court of India to make such a retrograde order, that is so against the trend internationally,” said rights lawyer Colin Gonsalves.
“This takes us back to the dark ages. This is a day of mourning for us in India.”
“Retrograde” seems to be the most common expression Indians are using to describe today’s decision. Protests have broken out in the financial capital of Mumbai. Observers doubt that India’s government will take up repeal of Section 377 anytime in the foreseeable future. Parliament is currently hopelessly deadlocked, much like our Congress. Elections are coming up in May, and the socially conservative Hindu nationalist Bharatiya Janata Party (BJP) are seeing gains in the polls as it is.
The Times of India has a good primer on the case and asks:
Here’s a pop quiz. Which century are we living in? 21st you say! But it seems the Supreme Court of India doesn’t agree with this logical fact. What else can explain the dogmatic and regressive verdict of the SC today in which they have upheld section 377 of the Indian Penal code that says that sexual relationship against the order of the nature is an offence. They also ruled that the courts should not intervene and that it was up to parliament to legislate on the issue. Wow, another wonderful responsibility on the able shoulders of our educated, socially sensitive and logical MPs-deciding how India’s citizen should lead their private lives!
The Times continues:
The verdict has been shocking on many levels.
Firstly, landing a major blow to India’s claim of being a country with a modern outlook, the fact a law made by Britishers in the 1860’s has been upheld in 2013 makes for a strange sentence.
Secondly, with many countries now equating gay equality with the rights for same-sex marriage, the Supreme Court ruling puts India back in the company of most nations in the Islamic world and many African countries which criminalise homosexuality. The only country in South Asia where gay sex is now legal is Nepal.
“It is highly embarrassing for the country because now we will be among the dirty dozens of the world,” said Narayan, the lawyer from the Alternative Law Forum.In most western countries, the debate about same-sex couples has shifted on to their rights to marry. More than a dozen countries now allow homosexuals to wed.
Thirdly, it is a blow to people’s right to equality. Just because gays have made a different lifestyle choice, they do not deserve to be put in jail. They are also entitled to their privacy and dignity. They do face widespread discrimination and ignorance from a largely homophobic Indian society. And with this verdict, the law has also deserted them.
Fourthly, by putting the ball in the Parliament’s court, the Supreme Court has now granted power to decide how India’s citizens should lead their private lives, in the hands of those MPs who are yet to become sensitive even to the gender equality issue.
Indian court reinstates colonial era sodomy law
December 11th, 2013
A colonial-era law criminalising homosexuality will remain in effect in India, a top court said, dealing a blow to gay activists who have argued for years for the chance to live openly in India’s deeply conservative society.
The Supreme Court threw out a 2009 New Delhi High Court decision that struck down the law as unconstitutional, saying it was for lawmakers – and not the courts – to decide the matter.
This is a serious set-back for rights in India.
Lawrence sodomy case was sexless
March 7th, 2012
What if John Lawrence and Tyrone Garner were innocent? What if the men arrested in Lawrence v. Texas, the case that found that gay couples had the right to intimate expression of their relationship were not in a relationship, not a couple, and had never intimately expressed anything to each other.
And that is what Dale Carpenter claims in Flagrant Conduct, his new book covered in a well written and informative New Yorker review (I’ve not yet read Carpenter’s book but anticipate that it will be fully enjoyed). The two men arrested for anal sodomy never had sex.
I expect that anti-gays will triumphantly declare this to be “an admission” that it was all contrived, a “hoax”. It wasn’t, but that’s beside the point.
I think it is appropriate that Texas’ sodomy laws were overturned in a case of non-sodomy. That wasn’t why they existed (and still exist) on the books.
Sodomy laws morphed with the times. When sodomy was a crime against nature by two men, it was a punishable crime. But when society came to recognize that it was not “two men”l in general but rather a distinct class of people, they took on a different role.
Now their purpose was placing and keeping gay people in an inferior social and legal position. They did not criminalize sex, they criminalized identity.
That is one reason it was so difficult to have them challenged. Arrests were extremely rare. The threat of arrest and the classification of a group of people as inherently criminal provides few victims in the eyes of the court.
In fact, Lawrence and Garner we’re not really arrested for sex, though some officers imagined that they saw sex occurring. But it was the setting – the erotic art, the clearly gay men – that gave these officers enough ‘proof’ of a crime. Their biases provided the rest.
So it is only fitting that sodomy laws, the legal prohibition on being gay, was decided on a case in which it was that status, rather than sex acts, was the cause of arrest.
India’s Supreme Court affirms decriminalization of homosexuality
February 16th, 2012
UPDATE: strike all below. They have not made a decision, this was just the direction of their questions.
There has been, for some years, increased tolerance and acceptance of sexual minorities in India. The largest break-through was in 2009 when the New Delhi High Court found that sodomy laws were unconstitutional and the government chose to apply that ruling to the nation as a whole.
In response some religious and other organizations and individuals petitioned the Supreme Court to overturn the ruling. Today the court confirmed the decision of the New Delhi High Court and officially ended the nation’s ban on homosexuality.
The justices took an interesting approach, pondering the meaning of Section 377 of the Indian penal Code which prohibits “carnal intercourse against the order of nature”. In an age of invitro fertilization and surrogacy, they decided that banning same-sex expression as being against the order of nature made little sense. And referring to sculptures of Khajuraho, they determined that gay sex was not originally an offense to Indians, but that the laws prohibiting it were colonial imports from Britain.
Bryan Fischer Wants To Put Everyone In Jail
October 14th, 2011
At least he’s not just picking on gay people:
These are behaviors that can be made illegal, and should be made illegal: those who strike their fathers and mothers, for murderers, the sexually immoral – that means it’s perfectly appropriate to have laws against what the law calls fornication, absolutely appropriate to make that illegal; men who practice homosexuality, perfectly permissible – in fact, we’re directed, we’re told in the Scriptures that it’s a good idea, this is the purpose of the law, it’s for the lawless and disobedient to engage in homosexuality – it’s perfectly appropriate for that kind of behavior to be against the law.
CO Civil Unions Defeated In House Committee
April 1st, 2011
The crazies came out again in Colorado last night to defeat the Senate Bill 172, which would have provided Civil Unions and other protections for LGBT Coloradans. The bill died in the committee on a 6-5 strict party-line vote. All Republicans voted no, including Rep. Brian DelGrosso (R-Loveland) whose uncle is gay. “It was tough,” said DelGrosso. As tough as it is for his uncle?
Rep. B.J. Nikkel (also R-Loveland), after voting no herself, thanked members of the committee and the bill’s sponsor for “a very thoughtful, civil dialogue about the issue of civil unions.” That “civil dialogue” not only included the “anus lady,” but last night featured the testimony of Paul Cameron.
To give you some perspective about where Cameron gets these crazy ideas, as recently as five years ago, the head of the Eastern Psychological Association publicly denounced Cameron for fraudulently passing off a paper he wrote as having been presented before the assembled association at a meeting in Philadelphia. Cameron has been removed from the rolls of the American Psychological Association for ethical violations in his fraudulent “research”, and his he has also been denounced by the Nebraska Psychological Association, the American Sociological Association (twice), and the Canadian Psychological Association, all for consistently misinterpreting and misrepresenting research on sexuality, sexual orientation, and the gay community.
You would think that were bad enough, but it gets worse. In a March 1999 edition of his newsletter, Cameron wrote glowingly of how the Nazis “handled” homosexuality. Specifically singling out the policies of Rudolf Höss, the mastermind behind Auschwitz. This echoes what Cameron said in 1985 at a CPAC conference, in which he proclaimed, “Unless we get medically lucky, in three or four years, one of the options discussed will be the extermination of homosexuals.” Cameron’s manifesto calls for the recriminalization of homosexuality and the denial of private domestic partner benefits to anyone who is HIV-positive. He would ban LGBT people from teaching or working at schools or day care centers, and mandate that all course material present homosexuality as “a public health hazard.”
To the shame of Coloradans everywhere, arguments like Cameron’s carried the day.
Update: ThinkProgress has more audio.
Montana House Blocks Attempt to Decriminalize Homosexuality
March 30th, 2011
The Montana House last night shot down an attempt to remove the state’s law making consensual gay sex illegal. Even though laws like Montana’s was struck down by the 2003 U.S. Supreme Court decision Lawrence v Texas, Montana lawmakers in the house moved to preserve the unconstitutional law yesterday:
The motion by Rep. Diane Sands, D-Missoula, to blast Senate Bill 276 out of the House Judiciary Committee, received 51 votes in the 100-member House but failed to secure the 60 votes needed. The vote was 51-47.
The Senate passed SB276, by Sen. Tom Facey, D-Missoula, 35-14, but the House Judiciary Committee tabled the bill.
Before the court ruling in 1997, gays and lesbians in Montana risked being charged with felonies and if convicted, they could have faced a maximum penalty of a 10-year prison sentence and a $50,000 fine, said Sands, a lesbian.
Incredibly, this was the reason given for the law’s retention:
Judiciary Chairman Rep. Ken Peterson, R-Billings, who is an attorney, said the Supreme Court didn’t find the law unconstitutional.
Its ruling held that same-sex adults, in private, not-for-commercial purposes, are protected by the right to privacy, Peterson said. The court didn’t say the law was unconstitutional, he said.
“It should not be repealed because of situations it might apply in,” he said.
In other arguments to keep the law, Rep. Michael More, R-Gallatin Gateway, reportedly cited Scripture, natural law and “eternal law.”
Montana’s confusing day
February 23rd, 2011
The legislature in Montana has been having a lot to say today about gay folk. And it’s all over the place.
The Senate decided to remove the unenforceable anti-gay language from their books: (Gazette)
The Montana Senate has voted to remove an obsolete state law that criminalized homosexual relations.
The state Supreme Court struck down the law in 1997. Senate Bill 276 would remove the language from state code.
The Senate endorsed the bill Wednesday 41-9.
While the House voted to reverse any municipality’s LGBT non-discrimination ordinances.
Montana GOP lawmaker seeks to repeal anti-gay law
September 20th, 2010
Back in June we, along with many others, noted that the platform of the Montana Republican Party included this position:
We support the clear will of the people of Montana expressed by legislation to keep homosexual acts illegal.
As it turns out, this was a position that had sat in their platform since 1997 and no one really noticed that it was there. But the attention proved to be embarrassing to some in the party. (AP)
“I looked at that and said, ‘You’ve got to be kidding me,'” state Sen. John Brueggeman, R-Polson, said last week. “Should it get taken out? Absolutely. Does anybody think we should be arresting homosexual people? If you take that stand, you really probably shouldn’t be in the Republican Party.”
Revising the Party platform requires a process involving committees and conventions and cannot happen over night. However, this has prompted Brueggeman to take action where he can. He is going after the defunct sodomy law that, though unenforceable, still sits on the Montana law books. (Bozeman Daily Chronicle)
State Sen. John Brueggeman says he is requesting a draft of a bill to strike down the law. The bill would be considered by the 2011 Legislature, which convenes in January.
The Polson Republican has criticized the GOP platform statement. He now says Montana shouldn’t have such a discriminatory law, even if it can’t be enforced.
I guess a little embarrassment can be a motivator.