The Dubious Arguments for India's Ban on Gay Sex

By Shivam Vij, The New Yorker

16 December 13

hen the Supreme Court of India ruled on Wednesday that it would reverse the decision of a lower court and uphold the constitutionality of a law that effectively criminalizes homosexuality, there was widespread shock. Most observers had assumed that the justices would endorse an earlier ruling of the Delhi High Court that had determined, in 2009, that Section 377 of the Indian Penal Code—which proscribes “unnatural offenses”—did not apply to sexual relations between consenting adults. But a look back at the arguments presented in the case, which took place last year, makes it clear that upholding the law was, in fact, the likely verdict.

The text of Section 377—a gift from our departed British friends dating back to 1860—states that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal” shall be subject to a punishment up to life imprisonment. The law does not specify what might constitute “carnal intercourse against the order of nature,” other than to note that “penetration is sufficient to constitute the carnal intercourse” cited. But, as the Delhi High Court wrote in its earlier judgment, the courts had interpreted the law to include “oral sex, anal sex, and penetration of other orifices” in the past; in other words, it criminalized all sexual acts apart from heterosexual vaginal intercourse. Convictions have been rare, but the law has been enforced almost exclusively against homosexuals, and the police have frequently employed it as a tool of harassment and blackmail.

In its decision, the Delhi High Court had “read down” the law, meaning that it would only apply to minors and non-consensual sex. Criminalizing sexual acts between consenting adults, the court found, would violate the Indian Constitution’s guarantees of dignity, equality, and freedom from discrimination. That case had begun in 2001, when the Naz Foundation, a nonprofit AIDS-prevention organization, filed a petition arguing, among other things, that its outreach to at-risk men was hampered by the criminalization of gay sex. Two parties came forth to oppose the petition: a retired police officer and right-wing Hindu ideologue named B. P. Singhal, who served as a member of parliament for the Bharatiya Janata Party, and a nonprofit group called Joint Action Committee, Kannur, which calls itself JACK India.

READ MORE: The Dubious Arguments for India's Ban on Gay Sex