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INDIA SUPREME COURT RE-CRIMINALIZES HOMOSEXUALITY

Human rights activists across the country are deeply disappointed with today's decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation to overturn the historic Delhi High Court judgement of 2009, which decriminalised homosexuality in India. CREA believes that today's decision to set aside that historic and progressive judgement is an unconscionable blow to people's fundamental rights to equality and freedom from discrimination, violence, and harassment. This is a huge setback not just for the LGBT movement in this country and elsewhere, but also for human rights everywhere.   

Today, the Supreme Court judgement has upheld Section 377 of the Indian Penal Code, a colonial law that makes criminals out of thousands of consenting adults in India. This judgement ignores the spirit of inclusiveness, which is at the heart of the Indian Constitution, as envisioned by the founders of this plural and diverse democracy. It tragically abandons the principle of constitutional morality ─ the principle that subjective moralities or majority views cannot be allowed to marginalise and exclude minority communities. In the long history of the Supreme Court's judgements that affirm human rights, this judgement marks a low point where the fundamental rights of citizens have been contracted, and stands together with the decisions upholding the Emergency and Mathura rape case.

Unjust as this decision is, our collective struggle and activism for all people's basic human rights will continue, and is newly re-energised. The wheels of history are in motion, both in India and on the larger global stage, and the movement for LGBT rights and equality will move forward. Fundamental human rights are not conferred by any court, as the Delhi High Court stated in its judgement in 2009, they are merely confirmed by them. Despite today's judgement, it is CREA's unwavering belief that "the arc of history is long, but it bends towards justice".

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http://www.washingtonpost.com/world/court-in-india-criminalizes-homosexuality/2013/12/11/ea7274a6-6227-11e3-a7b4-4a75ebc432ab_story.html

COURT IN INDIA CRIMINALIZES HOMOSEXUALITY

By Annie Gowen and Rama Lakshmi - December 11, 2013

NEW DELHI — India’s Supreme Court Wednesday set aside a historic 2009 lower court decision that had decriminalized homosexuality — effectively making gay acts illegal in this still-traditional country of more than a billion people.

Gay rights leaders expressed disappointment in the ruling, where gays and transgendered have often struggled against prejudice in a conservative and deeply religious society.

“It appears to be a setback,” said Anand Grover, a lawyer representing the LGBT community. “I can tell you the fight is not over. This is a constitutional fight. It will continue.”

In 2009, the New Delhi high court had for the first time decriminalized homosexuality , overturning a 1861 British colonial law known as “Section 377” that had deemed homosexual acts “against the order of nature,” and punishable with up to 10 years in jail. Wednesday the Supreme Court said that the law was valid and was up to the nation’s Parliament to change.

The 2009 decision had been celebrated as a landmark verdict for India’s gay community. The Delhi court had ruled that the age-old law was discriminatory and “a violation of fundamental rights.”

"It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," the Delhi court had written in a lengthy judgment in 2009.

But some religious and social groups had appealed the verdict to the Supreme Court.

“All the religious communities — Muslims, Christians and Hindus — had said that this is unnatural sex,” said Ejaz Maqbool, a lawyer representing the petitioners. “Today the Supreme Court held that the earlier judgment was wrong. Tomorrow if the nation feels and if the parliament feels this is a provision that needs to be removed from the Indian penal code, then they can."