Why is the BJP against the decriminalization of homosexuality

Court ruling on homosexuality in India
The end of fear

The Supreme Court in India legalizes same-sex acts after over a hundred years. It's a game-changing verdict.

India's Supreme Court, in a groundbreaking ruling, abolished Section 377 of the British Penal Code, which made "sexual intercourse contrary to the order of nature" a criminal offense. The paragraph was "irrational, indefensible and obviously arbitrary", justified the Chief Justice Dipak Mishra the decision.

The court thus ended a decades-long struggle for LGBTI rights in India, which had already led to different court judgments on several occasions. As early as 2009, the Supreme Court in Delhi ruled that a ban on “consensual sex among homosexuals” violated fundamental rights. However, this ruling was reversed by the Supreme Court in 2013 on the grounds that this issue should not be decided by the courts, but by the parliament.

"This judgment was wrong, illegal and misinterpreted constitutional principles," says Colin Gonsalves, one of the lawyers who have now succeeded in her petition. The activists benefited from the fact that the Supreme Court granted citizens a “right to privacy” in another groundbreaking ruling on data protection on the Internet last year. This has now been successfully claimed for what takes place in the bedroom or elsewhere.

Sexuality, according to the judgment, is "an essential part of privacy".
"The verdict is extremely important," said Meenakshi Ganguly, South Asia director for Human Rights Watch. "The permanent fear of paragraph 377 that we all had will no longer be there for the next generation," says Yashwinder Singh of the Humsafar Trust organization, which campaigns for LGBTI rights in Mumbai.

Victorian sex morals

The situation of homosexuals in India was at no time comparable to the persecution that took place in West Germany, for example, under "Gay Paragraph 175". By the time it was abolished in 1994, around 50,000, mainly gays, had been sentenced to prison terms of several years. In India, on the other hand, no one has ever been in jail because of their sexual orientation.

“I am gay and have never been discriminated against in my entire life. There is no active homophobia in India, ”says Abhijit Iyer-Mitra. The 42-year-old from Chennai, who works in Delhi for the Institute of Peace and Conflict Studies (IPCS), points out that the only convictions on the basis of paragraph 377 since 1870 for rape have been imposed. "Until now, this was the only legal option that a man could invoke if he was raped," said Iyer-Mitra. All other related laws applied only to women.

"Historically, India has always been liberal when it comes to sexual differences," says Shashi Tharoor of the opposition Congress Party. "Neither in mythology nor in tradition has there been any persecution for sexual deviance," said the member of parliament and author from Kerala. The Christian concept that sexual intercourse should only serve the purpose of procreation was unknown in India - until the British colonial rulers enacted their Victorian sexual morality. This then influenced Indian society for 150 years, in which many traditions and religions were mixed anyway.

Tharoor is one of the few politicians who have actively campaigned for the abolition of paragraph 377. Most politicians were opportunistic because the lesbian and gay electorate did not seem large enough to mess with conservative religious representatives in case of doubt. Tharoor accuses the ruling Hindu nationalist BJP of misinterpreting its own Hindu tradition.


A historic day for people who believe in equal rights for all

Bollywood star Aamir Khan

But this is campaign noise, because his own congress party has not abolished paragraph 377 in its more than 40 years in power. "No government has been particularly helpful so far, which is why we went to court," says Anjali Gopalan of the Naz Foundation, which is behind the campaigns against Paragraph 377.
The verdict also shows India's social change, which politics is lagging behind. "This is a historic day for people who believe in equal rights for all," tweeted Bollywood star Aamir Khan. "The court has done its duty, now we must do ours."


Britta Petersen is a Senior Fellow at the Observer Research Foundation (ORF), a think tank in New Delhi. She has lived in South Asia for 15 years. Before that she worked as a correspondent for the Financial Times Deutschland in Afghanistan and India as well as office manager of the Heinrich Böll Foundation in Pakistan.

Copyright: This text first appeared in the taz on September 6, 2018 and is published here with the kind permission of the author.
September 2018

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