An unexpected Indian Supreme Court ruling on Dec. 11 upholding a law that criminalizes same-sex relationships drew a swift rebuke within 24 hours from Navi Pillay, the United Nations High Commissioner for Human Rights, who called it a violation of international rights. The Indian court decision came barely a day after international Human Rights Day.
“Criminalizing private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified,” the high commissioner said in a statement from her office in Geneva. “Yesterday’s Supreme Court decision in this case represents a significant step backwards for India and a blow for human rights.” Pillay, a pioneering South African human-rights lawyer of Indian descent as well as a judge and former justice on the International Criminal Court, has been in South Africa for the funeral of Nelson Mandela.
India has never legalized same-sex relationships — and marriages are completely out of the question. The Indian criminal code, which calls for the punishment of those found guilty of “unnatural offenses,” was challenged in 2009 by the Delhi High Court, roughly equivalent to an American federal district court. That court declared the relevant section of the 150-year-old criminal code dating to British colonial times “incompatible with the fundamental principles of equality, dignity and non-discrimination enshrined in the Indian Constitution” and struck it down. The case went to the Supreme Court on appeal.
The justice writing the court’s opinion said that “those who engage in carnal intercourse against the order of nature” cannot claim protection under the law.
Pillay urged the Supreme Court to review its decision. “The Supreme Court of India has a long and proud history of defending and expanding protection of human rights,” she said. “This decision is a regrettable departure from that tradition.”
There has been a mixed reaction India to the Supreme Court ruling. The court has been very active in recent years on a range of new issues when politicians failed to meet challenges. Among other decisions, for example, it ordered the capital, New Delhi, to reduce pollution, a major health hazard, and ruled that politicians with criminal records should not be qualified to run for public office. Many Indians had come to see the court as progressive, though sometimes too intrusive, taking the pressure off inert or fractious politicians to act. The Indian Parliament has been slow to adopt laws — its constitutional duty — that are controversial or that would be difficult to pass or enforce.
After this week’s decision, there have been numerous homophobic comments in the Indian social media applauding the court’s decision. Some Indian Muslim leaders have also hailed the verdict. But there have also been powerful voices of dissent and criticism.
Writing in The Indian Express, a widely circulating English-language newspaper, Pratap Bhanu Mehta of the Center for Policy Research, an independent, secular, left-of-center organization, said that the court decision “shamed the constitution” in supporting a repressive legal system.
“The issue is simple,” he wrote. “Does it benefit a liberal democracy to criminalize homosexual activity between consenting adults? Does it befit it to be hostage to an archaic concept of ‘natural’? Is the criminalization not an infringement of everything we hold dear: liberty, equality, privacy, the right to life?”
He added: “It is about all of us. It is also about the fact that in a decent society, no one, no matter how small the minority, should be targeted simply for being who they are.”
Sonia Gandhi, the president of the ruling Congress Party, which leads a shaky coalition government headed for a national election in May, said in response to the court ruling that she was “disappointed” and hoped that Parliament would get around to addressing the issue of “life and liberty” for all citizens.
The fate of same-sex relationships and the roles of the courts and the Indian Parliament are entangled in social, religious, judicial and political forces that have until recently kept gay life out of the public eye and the media, often allowing its existence to be denied by what is in social terms a very conservative society, where marriages are largely arranged for the majority of people and leave little room for open same-sex partnerships. But lesbian-gay-bisexual-transgender (LGBT) organizations, particularly in urban areas, are challenging taboos and prejudices. Their involvement led to the 2009 lower court decision overturning the relevant section of the criminal code.
In her statement, Pillay — who has in the past upset India by excoriating the persistent discrimination of caste — also urged the Indian Parliament to act to end discrimination against LGBT people and protect them from violence, criminal charges and punishment.
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Barbara Crossette is the senior consulting editor and writer for PassBlue and the United Nations correspondent for The Nation. She is also a member of the Council on Foreign Relations. She has also contributed to the Oxford Handbook on the United Nations.
Previously, Crossette was the UN bureau chief for The New York Times from 1994 to 2001 and previously its chief correspondent in Southeast Asia and South Asia. She is the author of “So Close to Heaven: The Vanishing Buddhist Kingdoms of the Himalayas,” “The Great Hill Stations of Asia” and a Foreign Policy Association study, “India Changes Course,” in the Foreign Policy Association’s “Great Decisions 2015.”
Crossette won the George Polk award for her coverage in India of the assassination of Rajiv Gandhi in 1991 and the 2010 Shorenstein Prize for her writing on Asia.
