- By Hanna KozlowskaHanna Kozlowska is a fellow at Foreign Policy. She previously worked as a fixer, researcher and freelance contributor for the New York Times in Poland, and as the associate editor for Poland Today, an English-language magazine. Her work has also appeared in the Huffington Post and several Polish publications. She graduated from Swarthmore College where she was coeditor in chief of The Daily Gazette.
Upholding a colonial law whose wording is nothing short of medieval, the Indian Supreme Court on Wednesday banned gay sex, or "carnal intercourse against the order of nature with man, woman, or animal." Violators of the law, Section 377 of the Indian penal code, will face up to 10 years in prison.
The ruling, which overturns a decision from Delhi’s high court to decriminalize gay sex in 2009, caused an uproar in the country and within its political establishment.
"I think these matters should be left to the individuals. These are personal choices. This country is known for its freedom, freedom of expression. So let that be," said Rahul Gandhi, vice president of the Indian National Congress, the country’s majority party.
The Supreme Court ruled that the decision to overturn the law belongs to Parliament, and not to the Delhi High Court. But whether the politicians decide to decriminalize homosexuality remains an open question. "I hope that Parliament will address the issue and uphold the constitutional guarantee of life and liberty to all citizens of India, including those directly affected by the judgement," said Sonia Gandhi, mother of Rahul and head of the Congress party.
But analysts say that with the rise of the nationalist Bharatiya Janata Party before India’s national elections this spring there’s no good news in store for India’s LGBT community, which understandably decries the ruling as a significant backward step for gay rights. The law wasn’t strictly enforced before the 2009 Delhi ruling, but the past few years have seen progress for gay rights in India with a blossoming of gay pride parades, film festivals, and gay campus groups.
The law comes from a colonial statute, introduced in 1861, when India was part of the British empire. Many former British colonies have similar hundred-year-old laws prohibiting gay sexual relations — including Jamaica, Malaysia, Uganda, and Belize.
According to Jeremy Seabrook, the author of Love in a Different Climate: Men Who Have Sex with Men in India, these anti-sodomy laws stem from the Victorian uneasiness about homosocial behaviors traditional in many local cultures. That uneasiness became codified in colonial laws in societies that prior to colonization had a more condoning attitude toward homosexuality. "To label customary and complex relationships as ‘homosexuality,’ as colonial officials did, was the work of characteristic and arrogant reductionism" Seabrook wrote in 2004.
To root out the homophobic laws imported by the British to India may take a long time. As a start, the high court judges of India, who like to take their cues from the laws of their former empire, could follow the example of another relic of the past — Queen Elizabeth II, who gave her official stamp of approval to gay marriage earlier this year.