Delhi decriminalizes homosexual sex

Move will radically change life for millions of gay, lesbian and transgender citizens and represents a huge shift for gay rights in the developing world.

Stephanie Nolen
New Delhi — Globe and Mail

Homosexuals kiss during a rally in Mumbai on July 2, 2009. An Indian court on Thursday ruled gay sex was not a crime, a verdict that will bolster demands by gay and health groups that the government scrap a British colonial law which bans homosexual sex.

The hush of the courtroom was broken by disbelieving gasps, a few hastily suppressed whoops of joy, and then the sound of weeping, as rows of gay activists clutching hands listened to a judgment that few had believed would come in their lifetime: the New Delhi High Court Thursday repealed the portion of a sex law that criminalized consensual gay sex between adults, in a judgment that invoked an Indian tradition of tolerance and inclusion.

The judgment will radically change life for millions of gay, lesbian and transgender Indians, who have long been subject to harassment and abuse under the law, and also represents a huge gain for gay rights in the developing world.
In an unequivocal decision, Justice S. Muralidhar invoked the country's first prime minister, Jawaharlal Nehru, and his belief in inclusiveness as laid out in the country's constitution.

“This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society …” the judge wrote. “Those perceived by the majority as ‘deviants' or ‘different' are not on that score excluded or ostracized. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination.”
His audience was elated. “Today I truly feel so proud to be gay and proud to be Indian,” said Austin Fernandes, a 24-year-old student from Mumbai. “I see it not just as a victory for the [gay and transgender] cause but also for Indian democracy. The language of the judgment is truly amazing … If I ever had any doubts about the working of Indian democracy, today's judgment shattered them. The system might be slow, but it works.”

In the courtroom, the judge dispensed with the usual protocol of reading out the entire 105-page judgment and instead turned to the end, to the part he knew everyone was desperate to hear.
Leslie Esteves, an organizer of a coalition of civic groups called Voices Against 377, was in tears even before the judge began to speak, consumed with anxiety about the way her country might be about to change. “I grew up believing I was the only person in the world like this,” she said later, recalling her emotions as she waited to hear the judgment. “And I just don't want anyone else to feel that way.”
Section 377 was very rarely used for prosecutions, she noted, but still had a hugely damaging effect on people's lives. “It is not conviction that is the problem – even the threat of being targeted forces people underground. The threat of exposure, that threat is enough – it is enough to extort gay men for sex and money in Indian on a daily basis,” she said. “I hope people in India know not to let anyone get away with that any more.”
Technically, Thursday's ruling applies only to the New Delhi metropolitan area. However, Tripti Tandon, a lawyer who argued the case for repeal, said she believed it could be used as a powerful precedent were a prosecution brought in any other jurisdiction.

The government could choose to appeal the ruling to the Supreme Court.
Law Minister Veerappa Moily said that he would examine the high court's order before commenting. Last week, Mr. Moily said he planned to convene the Health and Home ministers to meet with him and discuss the law, and there were strong hints from senior government figures that the newly elected Indian National Congress-led government intended to repeal it.
But in the ensuing days, the opposition and many religious groups attacked that plan.
“There's a lot of pressure on the government and I only hope they don't give in into it,” said Anjali Gopalan, founder of an AIDS organization called the Naz Foundation, who brought the original case to court. “This judgment today will strengthen their hands if they're serious about taking a stand on this issue.”
Conservative and religious organizations in India were quick to slam the judgment, in a sign that the judges may have been somewhat optimistic in their statements about inclusiveness – while gay bars have opened in every urban area, and four cities saw Gay Pride marches last weekend, mainstream Indian attitudes to homosexuality remain critical.

“This is absolutely wrong. We will not accept any such law,” said Ahmed Bukhari, chief cleric at the country's largest mosque, the Jama Masjid. In a rare moment of religious harmony, his colleague at the World Hindu Council echoed that thought. “We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh.
Murli Manohar Joshi, leader of the Hindu-nationalist Bharatiya Janata Party, said it was not up to the courts to make a decision that contravened the way most Indians feel. “Parliament is above [the judiciary]. Country, society are also above it. One or two judges only cannot decide everything,” he told The Hindu newspaper.
Ms. Tandon said she hoped the government would recognize the law is untenable, and choose not appeal. “If they do it means a long, drawn-out legal battle, but if they do we will be up for the fight,” she said. The courts have recognized what government may not, she said, that a secular democracy in this day and age cannot have “such a law” on its books. “We've finally taken baby steps into 21st century,” she said.

The current case bounced between courts in the clogged Indian legal system for more than eight years. The law, adopted in 1860, said “unnatural sexual acts” could be punished by 10 years in prison. The statute was a holdover from the British colonial administration, and is similar to laws still on the books in many former colonies across the developing world.
Michel Sidibé, head of UNAIDS, heralded the ruling, saying it would assist in efforts to stop the spread of HIV (with which 2.5 million Indians are living) and would have ramifications beyond India's borders as well. “It sends a positive message to countries, where such laws still exist,” he said in a statement.
The judges refrained from entirely striking down the law because it is at present the only statute covering child abuse – instead only the section covering adult behaviour was “read down.”