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Loading ...Indian court decriminalizes consensual gay sex
07.02.2009 9:06am EDT
(New Delhi) A court ruled Thursday to decriminalize homosexuality in the Indian capital, a groundbreaking decision that could bring more freedom to gays in this deeply conservative country.
The Delhi High Court ruled that treating consensual gay sex as a crime is a violation of fundamental rights protected by India’s constitution. The ruling, the first of its kind in India, applies only in New Delhi.“I’m so excited, and I haven’t been able to process the news yet,” Anjali Gopalan, the executive director of the Naz Foundation (India) Trust, a sexual health organization that had filed the petition, told reporters. “We’ve finally entered the 21st century.”
But some religious leaders quickly criticized the ruling. “This Western culture cannot be permitted in our country,” said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.
The court’s verdict came more than eight years after the New Delhi-based foundation filed its petition – not unusually long in India’s notoriously clogged court system. The verdict can be challenged in India’s Supreme Court.
Sex between people of the same gender has been illegal in India since a British colonial era law that classified it as “against the order of nature.” According to the law, gay sex is punishable by 10 years in prison. While actual criminal prosecutions are few, the law frequently has been used to harass people.
The law itself can only be amended by India’s Parliament and gay rights activists have long campaigned for it to be changed. The government has remained vague about its position on the law, and Law Minister M. Veerappa Moily said he would examine the high court’s order before commenting.
The court’s verdict, however, should protect New Delhi’s gay community from criminal charges and police harassment.
“This legal remnant of British colonialism has been used to deprive people of their basic rights for too long,” Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch, said in a statement. “This long-awaited decision testifies to the reach of democracy and rights in India.”
While the ruling is not binding on courts in India’s other states, Tripti Tandon, a lawyer for the Naz Foundation, said she hoped the ruling would have a “persuasive” affect.
“This is just the first step in a longer battle,” Gopalan said.
Rights activists say the law, also popularly known as 377, or section 377 of the Indian Penal Code, sanctions discrimination and marginalizes the gay community. Health experts say the law discourages safe sex and has been a hurdle in fighting HIV and AIDS. Roughly 2.5 million Indians have HIV.
Homosexuality is slowly gaining acceptance in some parts of India, especially in its big cities. Many bars have gay nights, and some high-profile Bollywood films have dealt with gay issues.
Still, being gay remains deeply taboo, and a large number of homosexuals hide their sexual orientation from their friends and families.
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India’s deeply held traditions.
“We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.
In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, “at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable.”
“The court’s verdict, however, should protect New Delhi’s gay community from criminal charges and police harassment.”
Lots of luck on ending police harassment, it will continue.
I hope this sticks, and they don’t get their own version of a Prop 8. Congratulations!
The moronically hateful statements from some of India’s “religious” leaders make the best case for underlining the moral deficiencies of organized religion in general.
Most are nothing but festering cesspools of irrational behavior and inhumanity towards those members of society who do not conform to these exploiters (for profit and power) of group-hatred and stupidity.
America and India do have a lot in common though. They are both backwards third world countries morally, socially, and legislatively.
Bud E.: Can you justify the statement that the US is a “third world country morally, socially, and legislatively.”
It’s quite obvious you just want to feel big and important by bashing the US, especially since the bashing isn’t even legit.
Congrats!!! So happy for India!
“…we cannot afford to endorse homosexual behavior…” Rev. Babu Joseph, a spokesman of the Roman Catholic Church.
“…Religious leaders in the capital and in other parts of India…(and)…open homosexuality…”
I don’t think anyone is asking [them] to endorse homosexual behavior.
This is not the ruling The Court handed down. There is no punishment or endorsement for homosexual activity. The Courts are trying to remove the punishment aspect from the legal system, nothing else. Why do [they] always bring up endorsement, when the two really have nothing to do with each other.
I also do not see how The Religious leaders now expect “open homosexuality” to overwhelm our neighborhoods, and we will all be taking to the street on some kind of wild ride, as if the prison gates were just flung open.
My best intention from this ruling, for me is being able to sit on a park bench and (maybe) hold my male friends hand, not fuck ‘em openly in public. Then they speak of endorsement, I believe this is what they are conjuring up in the publics mind. Filling in the blanks, with these kind of thoughts, only scares the public even more. Why not let the public think for them selves for once.
Why these people are not able to say something good has come out of this, and leave out the negative stuff – for once!
Unlike the US
India does not many tax benefits due of marriage. The only difference is that gay immigration cannot take place. But Hindu lesbians can already declare themselves as a Hindu Undivided Family and get all the benefits of marriage. Gays can also get marrried but get no benefits in taxation. Hindu lesbians get it due to a loophole in the law which says that unrelated females living together can be recognized as a family unit. This was originally made for widows living together as in the movie Water. This option is not available to people who are born Muslims or Christians though.
In spite of what some religious leaders say, homosexuality has nothing to do with eastern or western culture. It is a matter of who we are. Criminalizing us will not make us into heterosexuals. Religious leaders here or in India who want to encourage responsible sexual behaviour must realize this is accomplished by supporting equality for sexual minorities and encouraging people to live their sexuality in ways that are responsible.
Great news.
A healthy first step. But the views of people takes a long long time to change. And the harrassment of the police will not stop. Moreover, the transgenders are held in fear or are open to ridicule due to ignorance. The transgenders in India should slowly start amending their belligerent ways by stoping to demand money at every shop or a traveller at any given space.
Kari, we’re not a third world country, but what we are is socially backward and regressive, especially on LGBT issues and equality. Religious cults are allowed free reign to influence discrimination and denial of full civil rights which to me is meddling in the political process (unlike most of the more progressive western cultures) in which it has no right given the separation of church and state and their preferential treatment in receiving tax-exempt status. We’re far far behind a number of western countries in which we should have been the trail blazer just because of religion being in the mix. Definitely socially backward and not likely to change for some considerable time.
I see, don’t accept, love and support other human beings merely because they are attracted and love others of the same gender. But do believe in bizarre, sick, twisted fairy tale books simply because enough people have been brainwashed with them for so long. The sooner humanity can get past organized religion, the better off we’ll all be.
It’s sad. The British import a law to India, but only its repeal is called “Western”.
Why does the press give the opinions of faith groups so much importance and seeming legitimacy when it comes to gay rights?
In 2009, does the press go around asking different faith groups what they think about laws allowing drinking, divorce, adultery, gambling, smoking, cohabitation, interracial marriage, invitro fertilization, birth control, genetic engineering etc…
We’ve long told little faith clubs…i.e. churches to keep out of state affairs and mind their own flock when it comes to all of these other life issues. Why on earth do we still give them an inflated sense of importance when it comes to the gay issue?
Lord save us from “holy” people who hold THEIR OWN opinions on everything in such high esteem!…
Today I’m proud to be both Indian and gay. The Delhi High Court judgement has made one thing clear- that India was founded, and countinues to be based, on the long-cherished values of freedom and equality. With this historical ruling, India has now become the largest democracy in the world to decriminalize homosexuality.
Although technically speaking, the judgement applies only to Delhi, but this is the first time a court as senior as this, with such respected judges, has given a decision on homosexuality. Because of that it sends a powerful signal to the legal establishment across the country. We can say with confidence that judges, lawyers and police officers across the country will understand and follow the Delhi High Court’s lead.
The wording of the 105-page ruling is astonishing. It demolishes every single argument presented in the court by the anti-gay lobby- especially the one which said that disapproval of homosexuality is strong enough to ask for a ban.
This is what the bench said,
“In our view Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are…
It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual,”