Thursday, December 12, 2013

Presaging A Take Over In India By The Right-Wing BJP, The Supreme Court Reinstates A Sick 1861 Colonial Law Against Gay Sex


I'm not sure if the National Organization for Marriage (NOM) has been officially designated a hate group, but-- despite their claims that their only interest is preventing same-sex marriage-- their president, Brian Brown was in Moscow in June testifying in the Duna against gay adoption in "countries that allow gay people to marry." Hate groups like NOM have been working in other countries to stir up hatred against the LGBT community, hatred that has often led to violence. Same with the crazy right-wing World Congress of Families in Illionois, which has been promoting international support for Putin’s anti-gay crackdown, including extolling an international statement praising a ban on gay “propaganda.” No doubt these extremist crackpots are reveling in this week's restoration of a ban against gay sex in India. Yesterday the Supreme Court ruled that a colonial-era law banning gay sex should not have been struck down in 2009. The Supreme Court ruled that only Parliament can change the 1861 British law that forbids "carnal intercourse against the order of nature with man, woman or animal." With India's version of the GOP, the fascist-oriented BJP, gaining power, Indian gays can't expect any relief from Parliament any time soon.
Anjali Gopalan, founder of a charity that sued to overturn the 1861 law, said she was “shocked” by the ruling.

“This is taking many, many steps back. The Supreme Court has not just let down the L.G.B.T. community,” Ms. Gopalan said, referring to gays, lesbians, bisexuals and transgenders, “but the constitution of India.”

S.Q.R. Ilyas, a member of the All India Muslim Personal Law Board, which had filed a petition in the case asking that the lower court ruling be reversed, praised Wednesday’s ruling.

“These relationships are unethical as well as unnatural,” Dr. Ilyas said. “They create problems in society, both moral and social. This is a sin as far as Islam is concerned.”

…Indians are in the main deeply conservative about issues of sexuality and personal morality. Surveys show wide disapproval of homosexuality, and Indians on average still have few sexual partners throughout their lives.

The pressure to marry, have children and conform to traditional notions of family and caste can be overwhelming in many communities. Indian weddings are famously raucous and communal affairs. So gays are often forced to live double lives.

Asian nations typically take a more restrictive view toward gay sex than western countries. In China, gay sex is not explicitly outlawed but people can get arrested under ill-defined laws like licentiousness.

The law banning gay sex is rarely enforced in India, but the police sometimes use it to bully and intimidate gays. In rare cases, health charities that hand out condoms to gays to help prevent the spread of HIV/AIDS have had their work interrupted because such efforts are technically illegal under the law.

But inspired by gay rights efforts elsewhere, activists in India have in recent years sought to assert their rights, holding gay rights marches and pushing for greater legal rights and recognition.

As part of this effort, the Naz Foundation, a gay-rights advocacy group, filed suit in 2001 challenging the 1861 law, known here as Section 377. After years of wrangling, the group won a remarkable victory in 2009 when the Delhi High Court ruled that the law violated constitutional guarantees for equality, privacy and freedom of expression.

India’s judges have a long history of judicial activism that would be all but unimaginable in the United States. In recent years, judges required Delhi’s auto-rickshaws to convert to natural gas to help cut down on pollution, shuttered much of the country’s iron ore mining industry to cut down on corruption, and ruled that politicians facing criminal charges cannot seek re-election. Indeed, India’s Supreme Court and Parliament have openly battled for decades, with Parliament passing multiple constitutional amendments to respond to various Supreme Court rulings.

But legalizing gay sex was one step too far for India’s top judges, and in a rare instance of judicial modesty they deferred the matter to India’s legislators.
Over time, Bollywood may have more impact on the LGBT community in India than an antiquated colonial law. Yesterday the Hindustan Times tried making sense out of the Supreme Court ruling by referencing the vibrant movie industry, which has been more and more open-- albeit overwhelmingly negative-- about the existence of gay sex in Indian society.
Bollywood films are said to mirror the society. As films about the LGBTQ community get an easy acceptance in India, it appears that India is slowly, but surely, changing its stand. In such a scenario, the apex court's re-instatement of a colonial era law is regressive and takes us back by years.

We look at films which explored the various issues of the LGBTQ community and thus reflect the growing level of acceptance and progress in India society, something the SC could pick up on.

I Am

A very pertinent film in the context of the Supreme Court criminalising gay sex in India, it shows a policeman catching Omar (Arjun Mathur) and Jai (Rahul Bose) in the act. He goes on to blackmail them and even rapes the couple. This film by Onir shows exactly what criminalisation of gay sex means for the Indian LGBT community.

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