After a 12 year legal battle, the Supreme Court of India overruled a lower court ruling striking down a law criminalizing consensual same-sex intercourse on Wednesday morning.
The Supreme Court has set aside the sweeping 2009 ruling of the Delhi High Court that struck down the sodomy law, known as Section 377, and referred the question to parliament.
The legal organization that brought the case, the Lawyers Collective, tweeted from the courtroom that this is a “major setback to LGBT rights.”
Since the Delhi High Court ruled the law unconstitutional in 2009, its enforcement has been suspended throughout India. Today’s ruling means people can once again be arrested and prosecuted for “unnatural offenses” in the world’s second largest nation.
Advocates seeking to undo 377 have the option of asking a two judge panel of the Supreme Court to review the decision. This may have a chance of success, since one of the judges who heard the case is entering retirement tomorrow, and a new panel could be more friendly to their arguments.
Alternatively, LGBT advocates could push parliament to act on the Supreme Court’s ruling. But many LGBT activists don’t place much faith in lawmakers.
“Nothing would ever happen” if the question were left to parliament, said Vikram Doctor just ahead of the ruling. Doctor is a journalist and activist with the group Gay Bombay who has worked extensively on the fight against 377.
“We stand quite behind in the queue for our rights” in the legislature, added Laxmi Tripathi, founder of the transgender advocacy organization the Astitva Trust.
Today’s ruling could have reverberations beyond India’s borders. The sodomy provision, known as 377, is part of the legal codes of many other countries that were once part of the British empire in Asia, Africa, and the Americas. As the largest former British colony — and the world’s second-most populous nation— this determination could could deal a blow to efforts to strike down sodomy laws across the Commonwealth of Nations.
The case against the sodomy law was first brought in 2001 by the HIV-prevention organization the Naz Foundation Trust. The organization brought the suit claiming that the provision, known as Section 377, was hindering efforts to provide health services to men who have sex with men. They claimed that it was unconstitutional because it violated provisions in the Indian constitution guaranteeing a right to health, a right to privacy, and prohibitions on discrimination.
HIV-prevention workers had encountered police harassment throughout India under the guise of enforcing 377. This includes the 2001 case in which two workers from the Naz Foundation, along with two employees from an organization called the Bharosa Trust, were detained for almost six weeks in the city of Lucknow facing charges of possession of obscene material and conspiracy to commit sodomy.
After several preliminary legal skirmishes over whether Naz had standing to bring the case in the first place, the organization won a victory from the Delhi High Court in 2009.
Even LGBT and HIV activists were startled by the sweeping ruling from the Delhi High Court. They thought the public health argument was the most likely to prevail — in part because the Indian Health Ministry sided with their suit. But the High Court agreed that 377 violated the right to privacy and a right to equality as well.
“The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery,” the court ruled. “In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.”
The ruling was significant for reasons beyond the legal arguments. The judges refuted the argument that homosexuality is a condition imported from the West, a claim that is often made against LGBT rights in India and other parts of the world once ruled by European powers. Instead, the ruling documented, the law against “unnatural offenses” was introduced by the British when India was under its rule, criminalizing sexual practices that had long had a place in Indian culture.
The Indian government decided not to contest the ruling, so the appeal was brought by a coalition of organizations, most of which have religious affiliations.
Those involved in the challenge had expressed confidence that the law would be struck down on the basis of at least one of these arguments before the verdict was announced, though they were prepared for the Supreme Court to “water down” the High Court’s ruling.
Siddharth Narrain, who works on gender and sexuality law with the Alternative Law Forum, told BuzzFeed early Wednesday that the judgement is “very shocking.”
5. Update: What the Supreme Court Said
The written ruling, which was issued shortly after the judgement was announced, was a devastating rebuke to the principles laid out by the Delhi High Court and to the Naz Foundation. The Supreme Court said that the High Court had relied too heavily on foreign precedents in asserting protections for LGBT equality and rejected the notion that the sodomy law criminalizes gay identity.
“Section 377 … does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offense,” the ruling stated.
The Supreme Court blasted the Naz Foundation for having “miserably failed” to have documented harassment of health workers they contend 377 facilitates.
In a statement following the judgement, the coalition fighting the law vowed to continue their fight.
“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,” the statement said. “In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.”
Tony Merevick contributed to this report.
J. Lester Feder is a foreign correspondent for BuzzFeed and 2013 Alicia Patterson journalism fellow.
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