Tag Archives: India

No 5 Homosexuality Still Criminal in 77 Countries

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The past four posts have looked at one issue (marriage equality, both domestically and around the world) and gay rights in two specific countries, Russia and India.

The subject matter of each of these four posts has received significant media coverage – for some pretty obvious reasons. Same-sex couples seeking the right to marry provide both a ‘human interest’ story, and usually some compelling images to accompany it. Putin’s crackdown on LGBTI Russians has inevitably received widespread attention, particularly in the lead-up to the Winter Olympics. And it is pretty hard to ignore the re-criminalisation of homosexuality in a country with more than 1.2 billion people.

But, comparatively, it has been much easier for the media to ignore the ongoing criminalisation of homosexuality in 77 countries across the world (including India after the recent Supreme Court decision, but excluding Russia where, despite the anti-propaganda law homosexuality itself remains legal).

To put that figure into perspective, that is five times the number of countries that have full marriage equality (or more than four times the number of countries including those where some parts have adopted marriage equality, like the United States). So, while some parts of Europe and North and South America (together with South Africa and New Zealand), push forwards towards full equality, more than a third of countries around the world still treat homosexuality as a criminal offence.

This includes 38 countries in Africa, while 41 countries come from the Commonwealth (which is pretty extraordinary when you consider there are only 53 member states in total).

Tragically, the are five countries – Iran, Mauritania, Saudi Arabia, Sudan and Yemen – where homosexuality attracts the death penalty, while capital punishment also applies in parts of Nigeria and Somalia.

Which is a scandalous state of affairs, and something that the media – including but not limited to the LGBTI media – should report, and reflect, more on.

There have been some encouraging recent signs – in terms of coverage, if not subject matter. Over the past week, moves to increase criminal penalties in Uganda and Nigeria have attracted attention globally. The murder of Eric Ohena Lembembe in Cameroon mid-year was also covered, as have, periodically, anti-gay developments in Zimbabwe, Iran and elsewhere.

What has also been encouraging during 2013 has been the debate, within the Australian LGBTI community, about the need for advocacy for global LGBTI rights. Sparked in part by the situation in Russia, there has finally been a discussion about the relative priority we give something like marriage equality, compared to decriminalisation around the globe.

After all, while we are fighting for the right to walk down the aisle, our LGBTI comrades elsewhere are fighting simply for the right to exist. I’m not suggesting that we have those priorities right – in fact far from it. But I get the feeling that we are closer to achieving a better balance at the end of 2013 than at the beginning.

Some of the organisations that have helped to promote the global push for decriminalisation include the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA: http://ilga.org), AllOut (https://www.allout.org), the Kaleidoscope Trust (http://kaleidoscopetrust.com), and of course Amnesty International (a link to the NSW LGBTQI Network here: http://www.amnesty.org.au/nsw/group/12065/). I would encourage you to support any or all of them.

One final point I would like to make is that there are things that the Australian Government can and should be doing with respect to this issue, not just raising it (diplomatically, in all senses of the word) through international forums and bilaterally, but also by providing aid to global campaigns for sexual orientation, gender identity and intersex status equality.

One special burden which falls upon Australia is its own responsibility for the criminal laws which still exist in our former ‘colony’, Papua New Guinea, which were in place before Independence in September 1975. Because of that fact, it is imperative that the Australian Government – and the Australian LGBTI population generally – helps to encourage moves in our closest neighbour to decriminalise homosexuality. Hopefully that day, not just in PNG but right across the South Pacific, is not too far away.

No 6 India’s Supreme Court Re-criminalises Homosexuality

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One of the more disappointing developments of the year was also one of the last in terms of LGBTI rights. On 11 December, India’s Supreme Court effectively re-criminalised homosexuality in the world’s second most-populous nation.

They did so by overturning the Delhi High Court’s July 2 2009 decision in Naz Foundation v Govt of NCT of Delhi, which had found that section 377 of India’s penal code was unconstitutional in so far as it applied to sex, including gay sex, between consenting adults.

While the Supreme Court did find that section 377 was discriminatory and that gay sex between consenting adults should not be criminal, it nonetheless decided that the matter is one for Parliament to resolve, rather than the Courts, and consequently ‘revived’ the application of section 377 to homosexuality.

For its part, the Indian Government has expressed its disappointment with the Supreme Court’s decision. Sonia Gandhi, president of the ruling Congress Party, described section 377 as “an archaic, unjust law”, while Finance Minister P Chidambaram is reported as saying that the ruling had taken India “back to 1860” (the year the law was first introduced).

In the past 24 hours, the Indian Government has filed a petition in the Supreme Court asking it to review its decision to reinstate section 377, on the basis that it “violate[s] the principle of equality.”

The Law Minister, Kapil Sibal, has tweeted that “[t]he government has filed the review petition on Section 377 in the Supreme Court today. Let’s hope the right to personal choices is preserved”.

What they haven’t done is commit to introducing legislation to overturn section 377 themselves, instead preferring to hand it back to the judicial branch of government to resolve. Which means that, for however long the petition takes to resolve, consensual sex between same-sex attracted adults will remain a crime in India (after the all-too-brief 4 and a half year era of decriminalisation).

The decision not to legislate at this stage is obviously a tactical one. A national election is due before 31 May 2014, and with the opposition Bharatiya Janata Party (BJP) adopting a more hard-line conservative position in response to the decision, there is the potential for them to use the issue as a pre-election wedge.

However, if the BJP and its Coalition parties do form government next year then, as well as making it unlikely that legislation to decriminalise homosexuality will be passed by parliament, it will also throw the status of the current Government’s petition to the Supreme Court (assuming it hasn’t been heard) into doubt.

In short, the situation is a bit of a mess.

But, before we judge too harshly the efforts to date of India’s Parliament on this issue, including those of the Congress Party-led Government, it is important to remember where the original blame for section 377 lies.

After all, we are expecting the current Indian political (and judicial) system to clean up the mess left by the British imperial Government of the 19th century. Just like other European ‘colonial’ powers, the British left a legacy of legal – and cultural – homophobia in its wake.

In fact, the British were especially talented at spreading homophobia around the world. More than half of all countries where homosexuality is illegal in 2013 are current members of the Commonwealth of Nations (more on that topic in the next post).

Indeed, the actions of the British Empire during the 19th and 20th centuries place a special burden on the United Kingdom (as well as Canada, Australia and New Zealand) to do whatever they can to assist fellow Commonwealth countries along the path towards decriminalisation.

Nevertheless, despite the original blame for section 377 lying elsewhere, the people with the power to finally abolish it are in India – either on the judicial, or parliamentary, benches. Here’s hoping they find the courage to do so shortly, and allow millions of LGBTI people to return to living their lives free from the threat of prosecution, or police intimidation.