Indian Supreme Court Re-Criminalizes Homosexual Activity

Judges struck down a 2009 lower-court decision that decriminalized homosexual behavior, but Church leaders opposed the Supreme Court’s move.

Supreme Court of India
Supreme Court of India (photo:

NEW DELHI — India’s Supreme Court restored a law to the Indian Penal Code (IPC) that treats homosexual activity as a crime and prescribes a prison sentence of up to 10 years if convicted.

And while the Church teaches that homosexual activity is objectively disordered and can never be morally approved, Indian Church leaders criticized the court’s move as a legal injustice.

Cardinal Oswald Gracias of Mumbai, the president of the Episcopal Conference of India, said that the Church has “never considered gay people criminals.”

According to AsiaNews, Cardinal Gracias, who is also a member of the council of cardinals advising Pope Francis on Curial reform, said that “the Catholic Church has never been opposed to the decriminalization of homosexuality, because we have never considered gay people criminals.”

“As Christians, we express our full respect for homosexuals. The Catholic Church is opposed to the legalization of gay marriage, but teaches that homosexuals have the same dignity of every human being and condemns all forms of unjust discrimination, harassment or abuse,” Cardinal Gracias said.

Two judges of the Indian Supreme Court on Dec. 11 restored Section 377 of the Indian Penal Code, first enacted during the 150 years of British rule, while ruling on an appeal against the verdict of Delhi’s state High Court that had decriminalized homosexual acts in 2009.

The Supreme Court ruled that homosexuality, or “unnatural” sex between two consenting adults, under Section 377, would remain an offense and that this provision was constitutional.

The controversial verdict evoked vociferous protest among homosexual-rights groups. The media fanned the flames, running banner headlines like “Court wrongs gay rights.” Business stories were published of exclusive international tourist networks that cater to homosexual clientele suddenly losing money. Human-interest stories told of the heartaches of parents with same-sex-attracted children.

A news report in The Times of India — the nation’s largest-circulation English daily newspaper — estimated the homosexual population in India at 100 million. This estimate was in stark contrast to the federal government’s figure of 2.5 million, in a nation of 1.2 billion people.

Section 377 of the Indian Penal Code, 1860, reads: “Unnatural offenses — Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with [imprisonment for life] or with imprisonment … for a term which may extend to 10 years and shall also be liable to fine.”


Church Teachings Caricatured

With dozens of competing news outlets deriding the controversial verdict, Church spokesmen were in demand. However, the nuances of the Church’s teaching regarding homosexuality were widely ignored by the Indian media, which frequently incorrectly represented the Church as condemning homosexual persons for their same-sex attractions.

“I am tired of these [TV] discussions where the Catholic Church is targeted by the panelists who fill the studios,” Divine Word Father Dominic Emmanuel, former spokesman for the Catholic Bishops' Conference of India (CBCI) and present spokesman  for the Archdiocese of Delhi, told the Register. “I am tired of the volley of insinuations against the Church in these shows. The Church is projected as the villain by the gay lobby.”

Alwan Masih, general secretary of the Church of North India (CNI), one of the largest Protestant churches in India, told the Register, “We certainly do not endorse the Supreme Court verdict that approves treating [same-sex-attracted individuals] as criminals.”

“But that does not mean we are supporting gay unions and same-sex ‘marriage.’ Whatever be the criticism, we cannot accept it,” said Masih.

In fact, one of the petitioners who had challenged the 2009 court verdict in the Supreme Court was the Utkal Christian Council, a Christian forum of Protestant churches in eastern Odisha state led by the CNI.

“We challenged the Delhi high-court verdict on several legal counts,” Bhibu Dutta Das, a CNI lawyer in Odisha, told the Register on Dec. 19.

“If same-sex union is granted legal sanction, then they could come to the church and insist on a marriage,” Das explained about one of the legal points raised before the Supreme Court on behalf of the Christian forum. It was among half a dozen groups, including a prominent Muslim group, that had challenged the 2009 verdict.


Government Response

Meanwhile, after homosexual-rights groups and the media criticized the verdict, Sonia Gandhi, chairwoman of the United Progressive Alliance running the federal government, expressed “disappointment” over the verdict.

Following this, Kapil Sibal, federal law minister, declared that the government was considering all options to restore the high court’s 2009 ruling.

“We must decriminalize adult consensual relationships,” said Sibal.

However, the government’s plan to pass emergency legislation to overturn the verdict was vigorously opposed  by other major political parties led by the principal opposition party, the Hindu nationalist Bharatiya Janata Party (BJP).

“Gay sex is not natural, and we cannot support something which is unnatural,” Rajnath Singh, BJP national president, told the media Dec. 15.

Meanwhile, the Samajwadi (Socialist) Party ruling the northern Uttar Pradesh state, India’s most populous, with more than 200 million people, vowed that it will not favor abolition of Section 377 either. The party has a strong support base among Muslims, who account for nearly 19% of the state’s population.

The Shiv Sena, a prominent regional party based in western Maharashtra state that has Mumbai as its capital, also opposed the move to abolish IPC 377.

Due to the strong opposition of other major political parties, the federal government altered its plan to introduce emergency legislation to decriminalize homosexuality. Instead, it restricted itself to filing a “review petition” before the Supreme Court on Dec. 20, requesting reconsideration of the court’s Dec. 11 decision.


Support for the Church

Many non-Christians expressed support for the Catholic Church’s public statements regarding homosexual behavior and the acceptance of same-sex relationships.

“I appreciate the Church’s stand. Indian society can never approve same-sex unions,” Harit Kumar, born of Hindu and Sikh parents, told the Register. “The media is glorifying homosexuality and has played a big role in spreading the gay message unwittingly,” said Kumar, a microbiologist who has been carrying on a campaign against homosexual activity from his base at Chandigarh — north of New Delhi. Kumar has even produced a documentary movie on the harmful impact of homosexual activity.

However, Kumar asserted that he endorses the Supreme Court ruling. The decriminalization verdict of 2009 had a “negative effect” on society, said Kumar. “TV programs and serials glorifying homosexuality have been on air as a result of the 2009 verdict. I hope that the Supreme Court verdict will put a break on such programs.”

Commented Father Emmanuel, “We are happy that the debate has brought to the fore the fact that people of other faiths also have serious concerns about homosexual behavior, like the Catholic Church.”

Register correspondent Anto Akkara writes from Bangalore, India.

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