In 2009, the Delhi High Court declared unconstitutional a colonial area law that criminalizes consensual homosexual acts between adults. The decision was celebrated by international human rights activists but also by scholars who noted that the decision relied on extensive citations to international sources, including decisions by other constitutional courts and the European Court of Human Rights.
Now the Indian Supreme Court has overturned that decision. From what I can glean, the core argument is that it is up to the parliament rather than the court to determine this matter. Given that there is almost no chance that the parliament will do so any time soon, this effectively means that consensual homosexual sex will be punishable by up to 10 years in prison for the foreseeable future. Even if this law may not be enforced at a large scale, this leaves India’s gay population at great risk of extortion and further complicates the possibilities for couples to live their lives openly.
British colonialism is responsible for many laws that criminalize consensual homosexual acts, including ones in Africa that now make homosexual acts punishable with the death penalty. There are two main factors that appear responsible for overturning those laws: greater social acceptance of homosexuality and international efforts to protect the rights of homosexuals.
The graph below plots the existence of laws that criminalize homosexual acts by public acceptance of homosexuality as measured by the World Values Survey (2005-2007). People were asked whether homosexuality is “justified” on a 10-point scale, where a score of 10 indicates “always justified” and a score of 1 indicates “never justified.”
By this measure, India will now be the country with the highest public acceptance that criminalizes homosexuality. Still, acceptance is very low. On average, Indians put themselves at 3 on the 1-10 scale. Note just how low public acceptance remains in many countries across the globe: in several countries nearly everyone picks the lowest possible number on the 10-point acceptance scale.
Among the countries with very low acceptance that do not criminalize there are essentially two groups. The first group consists of countries that for historical reasons, such as absence of French/British colonialism, never criminalized. This does not mean that homosexuality is condoned in these countries.
The second group consists of countries that are highly integrated into international regimes that prohibit states from criminalizing homosexuality, most notably the Council of Europe (via the European Court of Human Rights). This holds for states such as Georgia, Azerbaijan, Albania, Turkey, Serbia, and Russia.
Larry Helfer and I have shown that European Court of Human Rights judgments on LGBT rights have been especially influential in countries where public acceptance of homosexuality is low. The intuition is simple: in countries where acceptance is high international pressures may serve as a little prodding that speeds up rights implementation. Yet in countries where acceptance is low, we may not see any policy change in the absence of international efforts.
We found that international court rulings especially have this effect when there are governments in power that do not have nationalistic or Christian agendas or when a country has a system of judicial review in which courts can declare laws unconstitutional and use international sources to support that position. This latter mechanism best reflects the India case. While India is obviously not a part of the Council of Europe, its judges have been willing to consider international sources and foreign precedents.
I don’t know enough about the India case to offer a detailed analysis of what led the Court to this particular conclusion. It is not unheard of for constitutional courts to sway to public pressure but there may also be purely legal reasons why the court concluded in the way that it did. One concern is, of course, that if international precedents indeed matter, then other courts may use the Indian case as a precedent for their own decisions to preserve criminalization or overturn previous decisions to decriminalize.
A broader concern that I have is that I have not been able to detect evidence that decriminalization by itself moves public opinion towards greater acceptance. This creates a risk of backlash: there are countries that have policies that are more liberal than supported by their publics, perhaps because they implemented those policies in response to international social or material pressures. Indeed, we see evidence of such backlash in several of the countries with green dots in the graph that are on the low end of the public acceptance spectrum, including Russia.
I don’t think this means that gay people in those countries would have been better of if the international community had not pushed for greater rights. Decriminalization is valuable even in the context of broader discrimination. Yet, it is clear that there is real risk for backlash. Trends towards greater acceptance of homosexuals are not universal nor do they follow in straightforward ways from the implementation of laws that grant homosexuals some measure of protection.