India's Troubling Reversal on Gay Rights

Sonia Katyal in The New York Times, December 15, 2013

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By SONIA K. KATYAL

NEW YORK — Twenty years ago, when I was 21, I told my parents that I had fallen in love with another woman. At the time, it seemed incredibly rare for a daughter of Indian immigrants, in the suburbs of the American Midwest, to come out of the closet. “Had we stayed in India,” my mother said, “this never would have happened.”

In 2008, my mother proudly celebrated my marriage in San Francisco, giving me her wedding sari for the occasion. Though she did not realize it then, she had been wrong about India. The movement for gay rights there has been brewing for centuries. Same-sex intimacy, which can be found in ancient texts in South Asia, is now a common theme in talk shows and Bollywood movies.

The transformation in gay, lesbian, bisexual and transgender rights in so much of the world underscores the shock and disappointment I felt on Wednesday when the Indian Supreme Court, against all predictions and international trends in jurisprudence, upheld India’s 1861 sodomy statute, which a lower court had largely overturned in 2009.

With few of its own words, the Supreme Court reversed the decision handed down four years earlier by the Delhi High Court, which ruled that the statute did not apply to consensual sex between adults. It ignored evidence that the sodomy law, known as Section 377, perpetrates harassment of sexual minorities and threatens their health and safety. It rejected evidence that the law actively discriminates against sexual minorities. The irony is that Section 377, which prohibits “carnal intercourse against the order of nature,” was not enacted by Indians, but by their colonial rulers from Britain — which has repealed its own sodomy laws, starting with England and Wales in 1967. (Indeed, same-sex marriages are scheduled to begin in England and Wales in March.)

The Indian Supreme Court, which has looked favorably on legal developments in other countries, rejected the applicability of such arguments to India.

“Though these judgments shed considerable light on various aspects of this right and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature,” the court ruled, declaring that only Parliament could repeal Section 377.

Fortunately, the global movement for gay equality has become stronger with each year. Leaders of the governing Congress Party criticized the Supreme Court’s decision and said they would consider judicial review or a legislative remedy. But with a closely fought national election coming up against its rival, the conservative Bharatiya Janata Party, a solution might have to wait.

The Naz Foundation, the gay-rights organization that brought the 2009 case before the Delhi High Court, has vowed to redouble its efforts in the meantime. Indeed, courts are not the only source of guidance in the arc toward justice. In the world’s largest democracy, activism can make the difference. A reporter asked Gautam Bhan, an organizer of the fight against Section 377, if it was daunting to fight the Supreme Court. His reply: “Do you know what’s daunting? It is that moment when you are 15 and you are terrified of who you are. If we have survived that, the Supreme Court does not know what fear looks like.”

Sonia K. Katyal is a professor and the associate dean for research at Fordham Law School.