Defies Global Constitutional Trend While Sparking Outrage that Holds Promise for a Different Future

 

By Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School and Director of the Center for Gender and Sexuality Law 

The arc of the moral and legal universe bent away from justice early Wednesday when the Supreme Court of India upheld India’s colonial-era law that criminalizes sexual relations between same-sex partners.  The decision, in Suresh Kumar Koushal v. Naz Foundation, reverses a 2009 Delhi High Court ruling that declared the law unconstitutional.

The law, known as Section 377, demands imprisonment for anyone who “voluntarily has carnal intercourse against the order of nature.”  Although the law itself does not precisely define all of the covered acts, it has been used – repeatedly and damagingly – against members of the gay, lesbian, bisexual and transgender communities in India.

In finding that the Indian Constitution does not protect the right of consenting adults to engage in sexual intimacy, the two-judge panel cut directly against the overwhelming trend in courts around the world to reject these kinds of laws as violating basic individual rights to privacy and equality.  Although there was some cause for concern even before the decision was handed down because one of the two justices is well known to be conservative, it was hard to imagine, even yesterday, that such a retrograde ruling could take effect in the second most populous nation in the world.

It is often hard to find a silver lining in a terrible legal loss, particularly so soon after a decision has come down, but one seems to be emerging already in the widespread fury – across much of India – at the Court’s ruling.  (Some signs of change were already in place well before today as evidenced by the government’s decision not to appeal the Delhi High Court ruling.  Today’s decision responded instead to an appeal by a number of Indian religious leaders and organizations.)

But if there was any question about where things are headed, the outpouring in today’s media makes clear that the decision reflects the nation’s past but does not likely reflect the future.  Government officials have announced their commitment to seeking legislative repeal, with one commenting that the ruling imposed a “medieval mindset” on the nation.  The largest English language newspaper, The Times of India, likewise condemned the ruling as a “body blow to the very idea of individual choice,” and as one that “gives the police one more excuse to harass, extort and jail law-abiding people whose only ‘crime’ is that they do not conform to the traditional view of sexuality.”

Nearly 30 years ago, the U.S. Supreme Court issued a similarly hideous ruling, upholding Georgia’s sodomy law because it served the “legitimate interest” of moral disapproval of homosexuality.   That ruling caused grievous harm to many lesbians, gay men, bisexuals, and transgender individuals, just as the Indian Supreme Court ruling will surely do.  But the outrage that the ruling prompted was also reminiscent of the outrage across India today, and with that, comes some promise that the arc of the universe – and in particular, of Indian law – will bend once again toward justice, with hope that that comes before long.

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