When it comes to lesbians, gays, bisexual and transgendered people, last week’s U.S. Supreme Court ruling legalizing same-sex marriage highlights the gulf between India and much of the democratic world. More than 150 years after it was introduced, a colonial-era Indian law continues to criminalize “carnal intercourse against the order of nature with any man, woman or animal.” This effectively makes homosexuality illegal in India, aligning the country closer to Pakistan and Egypt than with the liberal democracies in Asia and the West.
In 2009, the Delhi High Court decriminalized all consensual sex between adults in private, raising hopes among activists that India was finally outgrowing an archaic law restricting individual freedom. But two years ago the Supreme Court overturned the decision and tossed the fate of Section 377, the part of the Indian penal code that criminalizes gay sex, back to Parliament.
Judicial restraint—not practiced nearly enough by India’s hyperactive courts—is not the problem. The principle that social conventions are better challenged by elected legislators than by unelected judges is sound.
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