Time magazine reports India’s Supreme Court has upheld the constitutionality of the nation’s colonial era “sodomy laws”, ruling there is no “right” under the constitution to same-sex carnal relations. The court ruled that Section 377 of the Indian Penal Code could be repealed but only by the legislature not judicial fiat.
Time is not too happy about this. The magazine’s editorial voice can be heard through out “Homosexuality is Criminal Again as India’s Top Court Reinstates Ban”. The lede states:
In a surprise move, India’s top court on Wednesday reversed a landmark judgment by a lower court decriminalizing homosexuality in the country. The court said that the law regarding homosexuality could only be changed by the government. “The legislature must consider deleting this provision (Section 377) from law as per the recommendations of the attorney general,” Justice GS Singhvi, the head of the two-judge Supreme Court bench said in Wednesday’s ruling.
In 2009, the Delhi High Court had overturned an archaic colonial law (section 377 of the Indian Penal Code) that made gay sex an offense punishable by up to life imprisonment. Wednesday’s decision shocked many because while anticipation was high not many expected India’s top court, which in the past upheld many progressive rights judgments often going against the government and popular discourse, to revoke such a forward looking judgment.
“Archaic” is also used in the subheading of the story to describe the law. The commentary in the second sentence of this paragraph is not quite accurate. The Attorney General of India had argued in favor of overturning the law — there is a hint of this in the quote from the court’s ruling, but nothing further.
The Hindu, one of India’s leading daily newspapers, noted the attorney general called the sodomy law a British import.
Mr. Vahanvati had said “the introduction of Section 377 in the IPC was not a reflection of existing Indian values and traditions, rather it was imposed upon Indian society by the colonisers due to their moral values. The Indian society prevalent before the enactment of the IPC had a much greater tolerance for homosexuality than its British counterpart, which at this time under the influence of Victorian morality and values in regard to family and the procreative nature of sex.”
Time makes its views clear in this paragraph.
While activists vow to challenge the ruling, the decision to decriminalize homosexuality is now in the hands of New Delhi. And while the good news is that the government has recently changed its position on the issue, arguing for it in the court pointing out that the anti-gay law in the country was archaic and that Indian society has grown more tolerant towards homosexuality, the bad news is that the country is heading for general polls in a few months and a much embattled coalition government is striving hard to retain power. It is thus highly unlikely that gay rights will take center stage in Indian Parliament any time soon.
“Good news”? That does cross the line dividing news and commentary.
There is also a lack of balance. Time quotes the South Asia director of Human Rights Watch, a “veteran LGBT activist” and other “[s]tunned LGBT activists”, but offers no voices in support of the decision, or an explanation of the legal principles offered by the court in its decision.
What then is going on in this story? Was there a breakdown in Time’s back office that permitted an ill-written story barely distinguishable from a press release making it through the editorial process?