India’s Supreme Court has taken the world’s largest democracy a giant step backward with a decision that once again makes homosexuality a crime. The law upheld by the high court amounts to an assault on the human rights of millions of gay and lesbian Indians, turning them into criminals overnight.
The top court’s decision overturns a 2009 lower court ruling that decriminalized homosexual acts between consenting adults. Section 377 of the Indian Penal Code prohibits sexual activity “against the order of nature with any man, woman or animal.” Under a law dating back to 1861, violators faced fines and up to 10 years in prison.
The original ruling striking the law down was the result of a case filed by the Naz Foundation, a New Delhi HIV/AIDS charity, which spent a decade fighting to expand gay rights. However, that decision triggered a backlash from faith-based groups, which filed the appeal that led to last week’s Supreme Court decision. (One of the religious leaders was Baba Ramdev, who once promised to “prove through clinical tests that yoga can cure AIDS.”)
The surprise decision puts the matter back into the hands of the Lok Sabha, India’s legislature. “It is up to Parliament to legislate on this issue,” said Justice G.S. Singhvi, who headed the two-person Supreme Court bench that handed down the ruling.
Changing the penal code itself could take years. However, Prime Minister Manmohan Singh and his coalition cabinet have the power to suspend the operation of the law by issuing an ordinance. That would be the quickest fix for the Supreme Court’s ill-considered decision. The law itself is a disgraceful throwback to colonial times. When it comes to gay rights, India has already moved on.