The verdict has been shocking on many levels. Firstly, landing a major blow to India’s claim of being a country with a modern outlook, the fact a law made by Britishers in the 1860′s has been upheld in 2013 makes for a strange sentence. Secondly, with many countries now equating gay equality with the rights for same-sex marriage, the Supreme Court ruling puts India back in the company of most nations in the Islamic world and many African countries which criminalise homosexuality. The only country in South Asia where gay sex is now legal is Nepal. “It is highly embarrassing for the country because now we will be among the dirty dozens of the world,” said Narayan, the lawyer from the Alternative Law Forum.
Gwynn Guilford notes that an “obvious factor keeping homosexuality illegal in many of these countries is Islam”:
Take for instance the countries that punish gay sex with death: Mauritania, Sudan, Saudi Arabia, Iran, Yemen, and parts of Nigeria and Somalia. Some—Nigeria, Sudan and Somalia—inherited British colonial anti-gay laws. But they too instituted the death penalty long after independence—most in the last 40 years—in line with Islamic sharia law. Many of the other 76 countries with severe anti-gay laws are also Islamic states.
India, however, isn’t. And before the British invasion, it was much more tolerant of homosexuality. So why would India and so many other ex-colonial countries cling so tightly to the moral whims of Victorian Englishmen that were never their own?
One reason might be that morality codes give governments a way to build a national identity around shared values, often as a foil to permissive Western countries. But a more prosaic one is that anti-gay laws are also a handy way to fortify state control (as is now happening in Russia).
Erik Voeten made the above chart showing that India is now the most gay-friendly country where homosexuality is criminalized:
One concern is, of course, that if international precedents indeed matter, then other courts may use the Indian case as a precedent for their own decisions to preserve criminalization or overturn previous decisions to decriminalize.
A broader concern that I have is that I have not been able to detect evidence that decriminalization by itself moves public opinion towards greater acceptance. This creates a risk of backlash: there are countries that have policies that are more liberal than supported by their publics, perhaps because they implemented those policies in response to international social or material pressures. Indeed, we see evidence of such backlash in several of the countries with green dots in the graph that are on the low end of the public acceptance spectrum, including Russia.
Jim Burroway joins the discussion:
“Retrograde” seems to be the most common expression Indians are using to describe today’s decision. Protests have broken out in the financial capital of Mumbai. Observers doubt that India’s government will take up repeal of Section 377 anytime in the foreseeable future. Parliament is currently hopelessly deadlocked, much like our Congress. Elections are coming up in May, and the socially conservative Hindu nationalist Bharatiya Janata Party (BJP) are seeing gains in the polls as it is.
Chandrahas Choudhury also doubts that India’s lawmakers will reverse the ruling:
The more realistic hope is that the judgment passed today by Justice G.S. Singhvi on his last day in office will on appeal be referred to a larger bench of judges, which will once again uphold the 2009 ruling. That judgment had held that Section 377 of the IPC “was based on a conception of sexual morality specific to [sic] Victorian era,” that it had been struck down inEngland as far back as 1968, and that it violated many fundamental rights guaranteed by the constitution, including the right to privacy and to equality before the law. …
Today’s judgment notwithstanding, the eventual legalization of homosexuality in India is inevitable. At least in the realm of the public sphere, if not that of the law, the gay-rights movement has made remarkable and permanent advances in the last two decades. And at least in large sections of urban India, the culture of shame and silence that attached itself to homosexuality in the past has been to a great extent broken down.