Tuesday, October 21, 2008

The Indian Government and the Homosexuality Disease

The Times of India recently reported on a case before the Indian High Court challenging Section 377 of the Indian penal code criminalizing sodomy and the like. To bolster its case, the Indian government has asserted arguments long popular before U.S. courts of a generation ago: (1) that homosexuality is a disease, (2) that Indian society as a whole disapproves of homosexuality and that consensus ought to be enough to support its criminalization, (3) that sexual acts between same sex individuals is immoral, a social vice a means of spreading disease and an agent of moral degradation, (4) same sex acts are against the order of nature, (5) that legalization of homosexuality would divide the country and cause social unrest, and (6) that legalization would lead to changes in marriage and divorce laws. The government is also using the case for strengthening its arguments for a broad view of parliamentary supremacy (that acts of Parliament, representing the will of the people cannot be reviewed by or set aside by any court). Lastly, the government is using the case to limit the use of transnational legal and human rights standards, arguing that constitutional norms in India ought to be made by reference solely to Indian traditions. "Our constitution does not talk about sexual orientation. We cannot impose other countries' constitutions on us. Our moral and ethical values are different." Homosexuality Not a Disease: HC, The Times of India, Mumbai Oct. 21, 2008 at A-11 (Times/Nation Section) (quoting Solicitor General P.P. Malhotra).