[There is almost no chance that Parliament will act where the
Supreme Court did not, advocates and opponents of the law agreed. And with the
Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in
ascendancy before national elections in the spring, the prospect of any
legislative change in the next few years is highly unlikely, analysts said.]
The ruling reverses a landmark judgment by a lower court, which in 2009 decided that an 1861 law
that forbids “carnal intercourse against the order of nature with man, woman or
animal” was unconstitutional. The law, passed by the British, makes
homosexuality punishable by 10 years in prison. Only Parliament can change that
law, the Supreme Court ruled.
There is almost no chance that Parliament will act where the
Supreme Court did not, advocates and opponents of the law agreed. And with the
Bharatiya Janata Party, a conservative Hindu nationalist group, appearing in
ascendancy before national elections in the spring, the prospect of any
legislative change in the next few years is highly unlikely, analysts said.
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,” Ms. Gopalan said. “The
Supreme Court has not just let down the L.G.B.T. community,” she added,
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
decision 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.”
India has a rich history of eunuchs and transgender people who
serve critical roles in important social functions and whose blessings are
eagerly sought. Transgender people often approach cars sitting at traffic
lights here and ask for money, and many Indians — fearing a powerful curse if
they refuse — hand over small bills.
Despite this history, Indians are in the main deeply conservative
about issues of sexuality and personal morality. National surveys show that
Indians widely disapprove of homosexuality and, on average, 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 of homosexuality
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 homosexuality is rarely enforced in India, but the
police sometimes use it to bully and intimidate gay men and women. In rare
cases, health charities that hand out condoms to gays to help prevent the
spread of H.I.V. and 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 could not 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 to India’s
legislators.
India’s central government had offered conflicting arguments
during the many years of wrangling around the case. But Indira Jaisigh, an
assistant solicitor general of India, said in a televised interview that she
was surprised that the court decided to punt on the underlying legal case.
“They have never been deterred by the argument that the
government, the legislature or the executive has not done this or that on other
policy matters,” she said.
Malavika
Vyawahare contributed reporting.
THAI PREMIER REJECTS DEMANDS THAT SHE QUIT
[Yet in recent years two of the most powerful institutions in the country — the courts and the military — have often been hostile to Mr. Thaksin and his allies. Mr. Thaksin was removed from office in a military coup in 2006 and his party has twice been dissolved by the courts. It re-registered under new names, all with the guidance of Mr. Thaksin, who has been in exile but remains its main inspiration.]
“I cannot retreat any further,” Ms. Yingluck said on national
television, her voice shaking. “Please be fair to me.”
Under Thai law, Ms. Yingluck and her cabinet must serve until a
new government is elected. The vote is scheduled for February.
The protesters, who have massed tens of thousands of people in
Bangkok in their campaign to banish Ms. Yingluck and her powerful family from
the country, have demanded that her cabinet resign in favor of a royally
appointed caretaker government and have been unmoved by her calling new
elections. Their demand has been widely derided by scholars, even those who
have long opposed Ms. Yingluck and her brother, Thaksin Shinawatra, a former
prime minister and the patriarch of the country’s most influential political
clan.
The American State Department issued a statement this week saying that Washington
“strongly supports democratic institutions and the democratic process in
Thailand.”
At the heart of the opposition’s protests is its skepticism about
some of the fundamentals of Thai democracy. The protesters are especially
disenchanted with the country’s winner-takes-all parliamentary system that has
allowed Mr. Thaksin’s party to dominate for two decades.
The policies of the governing party, including universal health
care and guaranteed high prices for rice farmers, have cemented strong support
in the populous northern and northeastern parts of the country but created
great resentment in Bangkok and other areas where the opposition has
traditionally been strong.
The protest leaders say they have little faith that Ms. Yingluck
will not abuse the power of her incumbency in the run-up to the Feb. 2
elections. They cite the appointment of senior civil servants friendly to the
government and the tacit sympathy of the police toward the government.
Yet in recent years two of the most powerful institutions in the
country — the courts and the military — have often been hostile to Mr. Thaksin
and his allies. Mr. Thaksin was removed from office in a military coup in 2006
and his party has twice been dissolved by the courts. It re-registered under
new names, all with the guidance of Mr. Thaksin, who has been in exile but
remains its main inspiration.
Mr. Thaksin’s party returned to power in 2011 largely because of
overwhelming electoral support in the north and northeast.
The proposal by protesters to bypass the Constitution and set up
an unelected council to run the country has been widely interpreted in Thailand
as an effort to avoid another stinging loss in the February elections. The
opposition Democrat Party, which has not stated whether it would contest the
elections, has not won a national election since the 1990s.
With thousands of protesters still camping out near the prime
minister’s office on Tuesday, the way forward is unclear.
Although Thailand’s king issued a decree on Monday making the
election date official, one of the country’s five election commissioners,
Sodsri Satayathum, expressed some doubt.
“The election commission is ready to hold elections, but I’m not
sure whether the political groups want to hold it or not,” Ms. Sodsri said. “If
the political groups are not ready for an election, there’s no use for the
election commission to do it.”
Correction: December 10, 2013
An
earlier version of this article referred incorrectly to the dissolution of Mr. Thaksin’s
political party. It was dissolved in 2006 and in 2008 — not twice in
2008.
