India’s Supreme Court Considers Decriminalizing Gay Sex

By Kai Schultz | July 16, 2018

India’s Supreme Court on Tuesday started hearing a challenge to one of the world’s oldest laws criminalizing consensual gay sex, a debate that has raised broader questions about how far to extend equal rights in the country.

Lawyers representing a cluster of gay and lesbian Indians who petitioned the court said the law, known as Section 377, was an archaic holdout from India’s colonial era.

“We are asking for a declaration that our rights are protected,” one of the lawyers, Mukul Rohatgi, argued before five judges in black robes. The court will most likely reach a verdict in a few weeks.

The question of how far safeguards should stretch for gay, lesbian, bisexual and transgender Indians pumped a bit of tension into the courtroom. When Rohatgi veered into a discussion of other rights for gay people, saying that “what happens in a bedroom is not the end-all, be-all,” Dipak Misra, the chief justice of the court, swiftly steered him back to the constitutionality of Section 377.

“I think you are questioning whether they can marry,” he said. “We’re plunging into the sea.”

Laws similar to Section 377 have been overturned in the United States, Canada, England and Nepal, India’s neighbor, Rohatgi said. He argued that the law was not in keeping with a ruling last year that guaranteed the constitutional right to privacy, including for gay people, and that it made no distinction between consensual and nonconsensual sex.

For much of its precolonial history, India was at ease with depictions of same-sex love and gender fluidity. In Hinduism, the country’s predominant religion, gods transform into goddesses and men become pregnant. But acceptance of homosexuality eroded when the British settled in India, bringing with them laws that reflected a rigid, Victorian morality.

In the 1860s, the British introduced Section 377, imposing a sentence of up to life on “whoever voluntarily has carnal intercourse against the order of nature.” The law is usually enforced in cases of sex between men, but it officially extends to anybody caught having anal or oral sex.

It also offers cover for those who want to blackmail, harass or sexually assault gay and transgender people. Although prosecution is unusual, many Indians fear that if they report crimes such as rape, they, too, will be arrested.

After a long legal battle, the Delhi High Court ruled in 2009 that the law could not be applied to consensual sex, essentially decriminalizing gay sex — but the decision technically applied only to the New Delhi region.

Shortly thereafter, Hindu, Christian and Muslim religious groups appealed the ruling, and in 2013 the Supreme Court restored the law, saying Parliament, and not the Delhi High Court, should take up the issue. The court said only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”

Responding to that ruling, a group of gay and lesbian citizens stepped forward to challenge the law on the basis that it violated their rights to equality and liberty, among other infractions, under the Indian Constitution.

The initial group included Navtej Singh Johar, a dancer; Sunil Mehra, a journalist; Ritu Dalmia, a celebrity chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier. Over the last few months, at least 26 others joined them.

On Tuesday, the Indian Psychiatric Society called for decriminalization, saying homosexuality was not a disorder. And at the hearing, Justice Indu Malhotra noted that homosexuality has been observed in animals, a remark that was interpreted as sympathetic to the petitioners’ case.

Rohatgi, the lawyer, cataloged legal advances for gay people in the United States, including the Supreme Court ruling in Lawrence v. Texas in 2003 that struck down sodomy laws. That ruling became one of the fundamental pillars in the framework of legal protections afforded to lesbian, gay, bisexual and transgender people in the United States today.

Justice R. F. Nariman interjected to offer advice.

“At some point, are you going to cite the European courts?” he asked. “Those are also important.”

When lawyers from the central government asked the court to delay hearings to give them more time to prepare despite months of notice, the bench refused.

Keshav Suri, a hotelier who filed one of the petitions against Section 377, said he was frustrated by the limitations of “conservative India.” He said it projected the message that the country cannot take steps that butt up against the mores of the traditional Indian family even when human rights hang in the balance.

“Conservative India needs to get out of being conservative,” Suri said.

But the country is changing, he said.

For a decade, pride parades have threaded through New Delhi’s streets. At The LaLiT, the hotel chain that Suri runs in India, stars from the American television series “RuPaul’s Drag Race” shimmy onstage at his dance parties. Recently, Suri married a Frenchman.

Among Suri’s own staff, a patchwork of Indians from mixed economic and social backgrounds, views have evolved over the years, he said. Now, Suri has “an army behind me of 3,500 people,” many of who are ready for the end of an “ugly law” like Section 377.

“I’m hopeful,” he said. “These judges are very capable.”

© 2018 New York Times News Service