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Supreme Court upholds gay sex ban, activists protest across India

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Supreme Court ruling upholding the colonial law of Section 377 is a betrayal of queer and human rights in India, activists gather in protest

By Team FI

The day after the world paid respect to the rights of human being to freedom by celebrating Human Rights Day, the Supreme Court of India ruled to uphold Section 377, thus criminalising homosexuality in the country. This ruling has overturned the Delhi High Court judgement in 2009 that had struck down this ban that dates from the colonial era.

A two-judge bench washed its hands of the issue by stating that it is not up to the courts to intervene, and has passed the buck to the Parliament. “It is up to Parliament to legislate on this issue,” declared the head of the two-member bench, Justice G.S. Singhvi, in the ruling.

A press release issue by Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners including parents of LGBT persons, mental health professionals, academics and law professors has declared the judgement as extremely disappointing, calling it an “unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment.” The press release pointed out that this has reduced “LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’”.

It is to be recalled that Delhi High Court in 2009 had said the criminalization of homosexuality forced “a sizeable section of society… to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery”.

The press release likened this to Supreme Court decisions upholding the emergency and legitimizing rape that marks the lowest ebb in the illustrious history of the Court. “In 1975 in ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathuras case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law,” stated the release.

In another statement, Amnesty International called it a black day for human rights in India. “This decision is a body blow to people’s rights to equality, privacy and dignity,” said G Ananthapadmanabhan, Chief Executive, Amnesty International India. “It is hard not to feel let down by this judgement, which has taken India back several years in its commitment to protect basic rights.”

Protests have been planned all over the country by human rights and queer rights activist.

Full Text of Press Release

Black Day for Human Rights, Queer Rights

We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. The decision by overturning the historic Delhi High Court judgment which recognized that LGBT persons are full citizens of India, attempts to stem the tide of history. By overturning the Naz Foundation judgment, the Supreme Court has, in one fell stroke again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’. The judgment of the Supreme Court is a unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment. It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence and harassment.

It is a tragedy that this judgment forgets the vision of the founders of the Indian republic which was so eloquently captured by the Delhi High Court. By re-criminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru. It equally abandons the principle of constitutional morality (ie majorities dont have a charter to discriminate against minorities purely because they are majorities) articulated by Dr. Ambedkar which is the cornerstone of a diverse and plural nation.

The judgment is thus a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognized and that equal treatment is a non negotiable element of the world’s largest democracy. In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.

This decision today along with the decisions upholding the emergency and legitimizing rape marks the lowest ebb in the illustrious history of the Supreme Court. In 1975 in ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathuras case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law.

Hard as this decision is and difficult as the road forward may be, we draw strength and inspiration from ordinary LGBT persons who will not allow this to affect the way they lead their lives. In the course of the last ten years or so, LGBT persons have begun to lead their lives openly and publicly proclaiming their claim to equal citizenship. The page of history has turned and no power on earth can deny LGBT persons the right to freedom, equality and dignity. Rights are not conferred by the Court, as the Naz judgment said, they are merely confirmed by them. The rights of LGBT persons cannot be taken by this decision.

We proclaim that in spite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice. We pledge to continue this struggle with re doubled vigour till such time that Section 377 is consigned to where it belongs- the dustbins of history.

11.12.2013, New Delhi

Issued by: Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners including parents of LGBT persons, mental health professionals, academics and law professors.