Shame falls on the India Supreme Court on international human rights day. As the grey skies covered Joburg and the rain fell over the city we mourned the loss of a great human leader and as India’s President paid his respects to Nelson Mandela, its Supreme Court just re-criminalized same-sex relationships. As President of South Africa, Nelson Mandela supported and respected the role of the constitutional court as the highest court in the country. He understood that the state and its courts have no role in prescribing what constitutes morality, rather he knew that every citizen should be afforded the right to live as a free human being, free of violence, and free from all forms of discrimination. In 1993, Mandela signed in the interim constitution of South Africa, which included the protection of LGBTI persons. Another moment in his tenure was in 1998, when the SA constitutional court decriminalized same sex relations and repealed the sodomy laws.
In 2013, on international human rights day, the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation has decided that section 377 is still constitutionally valid section of the law. By overturning the Naz Foundation judgment, the Supreme Court has, in one fell stroke again reduced LGBT persons to the status of what the Delhi High Court memorably called ‘unapprehended felons’. The judgment of the Supreme Court is an unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment. It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence and harassment.
South Africa’s equality clause is constantly under threat particularly the sexual orientation clause is the trump card for religious groups, traditional leaders and right-wing groups who wish to claim SA as a “moral Christian state”.
We have always looked to India as one of the world’s oldest democracies, a country like South Africa, challenged by poverty, gender-based violence and other common inequalities.
Today, I look to India and ask why are you streaming alongside leaders who are failing its citizens. Nonsensical and ill-informed leaders are shredding the legacy of Mandela and Mahatma Gandhi.
The Supreme Court of India deferred the matter to government, without a deadline, unlike in South Africa where the Constitutional Court deferred the marriages issues to Parliament with a clear set our guidelines and deadlines.
We must all work towards ending hatred, violence and prejudice and honor the memory of leaders like Mandela and Gandhi.
I can only hope that the government of India will take on its duties and repeal section 377 of the Indian Penal Code and lead us all into a new era of human rights protection.