India’s Supreme Court Decision is a Victory for Global Equality

Soumen Nath, New Delhi, India: Delhi Queer Pride -2015

September 6, 2018 — The Supreme Court of India today issued a unanimous decision decriminalizing same-sex relationships across the country. The landmark case, which combines careful legal reasoning with inspiring philosophy and prose, stands to animate similar legal challenges to colonial-era sodomy laws in other former British colonies, including pending cases in Botswana, Jamaica and Kenya. After nearly two decades of local activism and legal struggle in India, the decision is a powerful affirmation of the democratic and constitutional rights of sexual minorities in India and beyond.

The carefully crafted judgment carries important moral authority, since article 377 of the Indian Penal Code was a colonial-era legal model that was eventually imposed on British colonies worldwide. As a result, the legal reasoning is reverberating across the British Commonwealth. Just as important, the decision’s political arguments, coming from the largest and most diverse democracy in the world, provide a guiding framework for democratic citizenship in any pluralistic society – and an important warning against the tribalism and nativism that are driving so much of the world’s politics today.

Five judges on India’s Supreme Court ruled that India’s “Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.” Indeed, the Court went on to find that “our ability to survive as a free society will depend on whether constitutional values prevail over the impulses of the time. Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and the equal protection of law.”

Looking beyond its own constitution, the Supreme Court of India also analyzed comparative jurisprudence from courts around the world, including leading LGBT cases from the U.S. Supreme Court. One of the “guiding principles” that emerged from this exhaustive comparative review is that: “The right to love and to a partner, to find fulfilment in a same-sex relationship is essential to a society which believes in freedom under a constitutional order based on rights.”

The breadth of the decriminalization decision is remarkable. Finding that “homosexuality is a natural variant of human sexuality,” the Court concluded that 377 violates the rights to life, liberty, privacy, equality, expression and health. But the Court was perhaps most eloquent in defending the rights to individual dignity and citizenship. With that voice, the India decision stands as an emotionally powerful legal argument that tracks U.S. Supreme Court jurisprudence, including the Obergefell decision in 2015 that found a Constitutional right to same-sex marriage in the United States.

In Obergefell, Justice Kennedy emphasized the fundamental human dignity of individuals and families seeking Constitutional protection before the Court, writing that “they ask for equal dignity in the eyes of the law. The Constitution grants them that right.” The Supreme Court of India went a step further, noting that “history owes an apology to the members of this community and their families, . . . . LGBT persons deserve to live a life unshackled from the shadow of being ‘unapprehended felons’.”

India: Supreme Court Revisits “Sodomy” Law

LGBT rights activists in Mumbai, India cover themselves with a rainbow flag after the Supreme Court announced on February 2, 2016 that it would hear an appeal of its 2013 decision that upheld a discriminatory law criminalizing same-sex relations. © 2016 Reuters

Repost from Human Rights Watch

India’s Supreme Court agreed on February 2, 2016, to hear an appeal of its2013 decision that upheld a discriminatory law criminalizing same-sex relations, Human Rights Watch said today. The Indian government should file an affidavit with the court to set aside the country’s “sodomy” law and uphold the fundamental rights of lesbian, gay, bisexual, and transgender (LGBT) people.

“The Supreme Court has provided real hope to LGBT people in India by agreeing to review its 2013 ruling that favored discrimination over equal rights for all,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The Indian government should seize the opportunity and weigh in to make clear that discrimination, harassment, and other abuses of LGBT people have no place in contemporary society.”

The law, section 377 of the Indian penal code, punishes “carnal intercourse against the order of nature” with up to life in prison. The law had been struck down in 2009 by the Delhi High Court, which said the law was a violation of fundamental rights to equality, nondiscrimination, life, and personal liberty guaranteed by the Indian constitution. The court had noted how criminalization of same-sex relations had a negative impact on the lives of LGBT people. Continue Reading at Human Rights Watch.

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Evangelicals Are Winning The Gay Marriage Fight — in Africa and Russia

Photo: Walter AstradaA/AFP/Getty Images

Repost from National Journal

Long before President Obama selected three gay athletes to lead the American delegation to the Sochi Olympics, long before President Vladimir Putin declared Russia to be the world’s new “moral compass,” and long before practically anyone in the West had even heard of that country’s new “homosexual propaganda” law, one American had thought deeply about it—because he’d helped invent it. “My greatest success, in terms of my own personal strategy, is Russia,” Scott Lively says from his native Massachusetts, where he launched a quixotic bid for governor this year.

Lively, who is being sued in U.S. federal court by a gay-rights group for alleged crimes against humanity over his work fighting “the gay agenda” in Uganda, led a 50-city tour through the former Soviet Union several years ago to warn its citizens about the international gay conspiracy. His message and his proposed solution—to criminalize LGBT advocacy—were received with open arms in town-hall meetings, local legislatures, and St. Petersburg, which sent an open letter to the Russian people and later became one of the first cities in the country to outlaw “homosexual propaganda,” paving the way for the national legislation.

“I was an alcoholic and a drug addict until I got saved in 1986, and since that time my focus has been to restore a biblical focus with regards to marriage and sexuality,” he says. Lively became a lawyer, author, and advocate in pursuit of the cause, but he gave up on the United States almost a decade ago, when one of his cases (challenging an antidiscrimination law)failed. “I began shifting my emphasis, which is going to the other countries in the world that are still culturally conservative to warn them about how the Left has advanced its agenda in the U.S., Canada, and Europe—and to help put barriers in place. And the goal is to build a consensus of moral countries to actually roll back the leftist agenda in my country,” he explains matter-of-factly.

For Lively and the rest of a small but incredibly influential band of American activists who spend their time crisscrossing the globe to meet with foreign lawmakers, deliver speeches, make allies, cut checks, and otherwise foment a backlash against the so-called international gay-rights agenda, this is nothing less than a war for the fate of human civilization. Continue Reading

India’s Gay-Rights Movement Rises Up After Supreme Court Criminalizes Homosexuality

Repost from Time

A controversial Supreme Court ruling on Wednesday morning that reinstated an archaic colonial law criminalizing homosexuality incited outrage among activists and gay-rights supporters in India. Hundreds gathered at Jantar Mantar, New Delhi’s popular protest hub, to protest the ruling. A truly mixed crowd, many of the protesters were not from the LGBT community. They came in hordes from universities and colleges to champion civil liberties. “This is not about homosexuality but about democratic rights,” said Samita Raj, a 19-year-old student at the protest. “And the right to be.”

The mood at Jantar Mantar resembled a different moment last year, when the youth of India had congregated to demand justice for the gang rape and murder of a young medical intern. It was a comforting sign that from a fringe issue, India’s gay movement has become the subject of mainstream debate and mass support. “Today when I speak to young people in colleges, they say, ‘We know how you feel.’ And that’s a huge achievement for the movement,” Gautam Bhan, a 33-year-old gay-rights activist, told TIME. “The ruling cannot set aside the gains we have made in the last decade, especially after 2009.” The Supreme Court in Wednesday’s ruling had said that changing a law was the responsibility of the government.

Whether the Delhi High Court had overstepped its mandate four years back is a matter of debate. Its historic judgment in 2009, which decriminalized homosexuality in the country, was something of a watershed moment for gay rights in India. Many more young people had come out of the closet. Harish Iyer, a Mumbai-based equal-rights activist, says there was a more than 100% increase in people wanting to come out of the closet after 2009. Iyer says that before 2009 he used to receive around two distress calls a week from people wanting to come out. Now he receives around six calls a day. “What are you doing now? Pushing them right back in?” he asks. “It’s not going to work. People who are out will be out louder and stronger.”

The other surprising takeaway from the ruling was the unexpected show of solidarity from the Indian government. Rural Development Minister Jairam Ramesh said the ruling flew in the face of a “modern liberal India.”

“The high court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our constitution,” Congress chief Sonia Gandhi said in a statement. “This constitution has given us a great legacy, a legacy of liberalism and openness, that enjoin us to combat prejudice and discrimination of any kind.”

Law Minister Kapil Sibal, after an initial noncommittal reaction, later tweeted that the government was considering its options to restore the 2009 verdict. “It gives us great hope,” says Anjali Gopalan, founder and executive director of the Naz Foundation, an Indian nonprofit that works on HIV-AIDS and sexual health, who had filed the original lawsuit in the Delhi High Court. “A lot of young people have come out of the closet post-2009. We can’t push them back in.”

While politicians and activists mull their options, India’s LGBT community is emerging stronger from the ruling. “We feel much emboldened by the fact that we are a heterogeneous crowd now,” says Iyer. “Also, what do we have to lose now? You have pushed me down so low that from here on I can only look upwards.”

Related Content:

The Times of India “Gay sex verdict: Govt considers options, Sonia disappointed with SC ruling” http://bit.ly/1iZqsG7

BBC News India “Indian media outrage over gay sex ruling” http://www.bbc.co.uk/news/world-asia-india-25344735

Aljezeera “India gay sex verdict sparks outrage”  http://aje.me/JjZiKo

Reuters “U.N.: Indian ban on gay sex violates international law” http://trib.in/1bZTWjd

The New York Times “For Gay Rights Advocates, Jubilation of Four Years Turns to Shock”  http://nyti.ms/1cEZPkn