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Legal experts say Indian top court’s decision is in violation of democratic norms

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SHAHANA BUTT, PRODUCER: Indian top court’s recent ruling on criminalizing homosexuality has come under a stern criticism in and outside the country.

The court reversed a landmark decision made in 2009 by Delhi’s high court saying the colonial-era law infringed upon the fundamental rights provided under Indian Constitution.

Senior advocate Anand Grover tells TRNN how section 377 of Indian Penal Code violates the fundamental rights:

ANAND GROVER, SENIOR ADVOCATE, LAWYERS COLLECTIVE: It’s wrong. Three seventy-seven is actually violating–it violates privacy, health, and dignity, because criminalizing means that you can intrude into the private sphere, which is not permissible under the Constitution. It actually treats these people, the LGBT community, in a discriminatory manner. Though the law is applicable to all, it is only enforced against the LGBT community. So, therefore, it’s in violation of articles 14 and 15, which talk about equality discrimination.

BUTT: The recent decision came as a setback to Naz Foundation, a non-governmental organization who were the first to file the petition against Section 377 in 2001.

In 2009, the Delhi High Court accepted its request to decriminalize consensual same-sex conduct between adults.

Anjali Gopalan, the head of Naz Foundation, while criticizing the top court’s ruling, says it’s against the norms of democracy:

ANJALI GOPALAN, FOUNDER, NAZ FOUNDATION: I really can’t understand it. To me it is bizarre that you decriminalize a population, and four years later you criminalize again. So you’re sitting for four years having decriminalized people. Young people have used that opportunity and found the guts to come out about being gay. And now you’re trying to push them back into the closet.

I mean, this day and age, this is not a good reflection on the country, on who we are as a people, what we’re thinking, how we’re thinking. And I think you would think that the Supreme Court at least would uphold the rights of people. So it’s really sad that this has happened.

BUTT: After Delhi High Court’s decision of legalizing LGBT or lesbian, gay, bisexual, transgender activities in 2009, various individuals and groups, most of them religious conservatives, appealed the High Court verdict. Thus the Supreme Court upheld the constitutionality of Section 377.

Anand Grover tells us the fallout of Supreme Court’s decision:

GROVER: The fallout is that everyone, without exception, has criticized this judgment. This judgment has to actually go. The judgment cannot stand. It is in violation of the basic principles of fundamental rights which the Supreme Court itself has enunciated. This is a black mark on the Supreme Court. It has to go.

BUTT: Section 377 of Indian Penal Code punishes sexual activities “against the order of nature”, including homosexual acts, with up to life in prison.

TRNN asked Anand Grover why the lawmakers in India have failed to work on Section 377.

GROVER: I think you’ll have to–you know the political class. It’s more populist. So they don’t see any votebanks in this, and they don’t stand on principles as they should. That’s why they have not acted. But I think they have realized that the trends are changing. Younger people do not agree with this kind of verdict of the Supreme Court. And therefore they are thinking of changing their stand.

BUTT: In deeply conservative India, homosexuality is a taboo, and many people still see same-sex relationships as illegitimate.

Finally, the ball is in the court of parliamentarians to take a decision on this controversial issue.

For the real news network, Shahana Butt reporting from New Delhi.


DISCLAIMER: Please note that transcripts for The Real News Network are typed from a recording of the program. TRNN cannot guarantee their complete accuracy.

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