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2 Jul 2009

Delhi High Court legalises gay sex

In a historic and eagerly anticipated judgment following an 8-year legal battle, the Delhi High Court on Thursday legalised gay sex among consenting adults by ruling in favour of a petition which sought a 'reading down' of Section 377 of the Indian Penal Code.

“Equality should not be read literally, but in true spirit.”

Chief Justice A. P. Shah, who wrote the historic judgment, invoked the words of Jawaharlal Nehru - the country's first Prime Minister since independence from Britain - when he said that any kind of discrimination is anti-thesis of right to equality and that just because some people did not like a minority was not sufficient to treat those minorities as criminals.

On Thursday, the Delhi High Court ruled in favour of the petition filed by a HIV/AIDS NGO Naz Foundation in 2001 which sought a 'reading down' and not a total repeal of Section 377 of the Indian Penal Code in order to decriminalise private consensual sexual activity regardless of the sex of the parties involved. The petition argues that the law is a threat to the right to life and right to health of homosexuals in India because it perpetuates social stigma and police abuse. It also highlighted the law as obstructing HIV/AIDS prevention work among the gay community, thereby causing the increased vulnerability to contracting the disease.

The judgement will only be binding in Delhi also known officially as the National Capital Territory of Delhi (NCT) and is the second-largest metropolis in India with some 16 million residents of the country's total population of 1.15 billion.

The Times of India reported the bench comprising Chief Justice Shah and Justice S Muralidhar as saying that if not amended, Section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before the law. The court said that its judgement will hold till Parliament chooses to amend the law.

"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," the bench said in its 105-page judgement.

While the law will be read down, it will continue to stay on the books for use in child sexual abuse, and non-consensual penile non-vaginal sex cases.

Vikram Doctor, a journalist and Fridae source said, “It’s amazing, an unbelievable culmination of an eight-year struggle (and the start of another one, but we do have this win).
 
“This judgment is particularly historic because it strikes down a law that was first applied in India by the British and then taken across the world, where it has harassed countless people. Today the Delhi High Court has struck down this law at its root and we hope this sends a message both to the Indian government and governments across the world.”

Anand Grover, the laywer who argued the case for Naz Foundation, described - in an AFP report - the decision as an "historic event because India was the country where the anti-sodomy laws were first statutorised... and the same law was then replicated all over the British Commonwealth."

It is known whether the Centre would appeal against the ruling in the Supreme Court.

In a statement issued today, the Human Rights Watch has urged India’s government not to contest or appeal the decision. The group also urged India’s Lok Sabha (Parliament) to move quickly to scrap Section 377 nationwide, and to replace it with laws that would provide full, gender-neutral protection for children and adults against sexual abuse and assault. Existing Indian “rape laws” do not recognise anything but penile-vaginal penetration as sexual assault, which leaves many adults and children, including male children, unprotected.


Extracts from the judgement which can be downloaded by clicking the PDF link below.


The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgenders is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied "moral full citizenship". Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in "The Indian Constitution - Cornerstone of A Nation", "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". (Page 43)

The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest "must be legitimate and relevant" for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity. (Page 76)

Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself. (Page 80)

Related articles:

- Delhi High Court legalizes homosexuality (Times of India, Jul 2)
- A banner day for equality (Times of India, Jul 2)
- Homosexuality: Chronology of eight year-long legal proceedings (The Economic Times, Jul 2)

Reader's Comments

1. 2009-07-02 14:43  
Good stuff! Another sensible move forward in creating an equal and just society for all Indians...
2. 2009-07-02 14:58  
Whoohoo! Great news for India! Now if we could only fit that whole name into Alanis Morissette's song: "Thank you India [Supreme Court]..." :-)
3. 2009-07-02 15:28  
This is marvelously brilliant! Puts a global city like Singapore to big time shame.
4. 2009-07-02 15:49  
Cool! if India can do it, why not Singapore!
5. 2009-07-02 15:56  
it's good that India law change, so they can leave the tradition thought at the back and move forward to the new thought....

so good to hear ^^
6. 2009-07-02 15:56  
Brilliant, and congratulations to India in finally realising the true spirit of equality for their gay population.
7. 2009-07-02 17:05  
Here is the full text of the Court's judgment:

http://timesofindia.indiatimes.com/photo.cms?msid=4728348

Reading this, especially about the brutality of the Indian police, will put some perspective to the whole issue. While in the western countries gay people have had the luxury of being able to bitch to their manicurist about how devastated they were that their relationship was merely called "civil union" and not "marriage", it has literally been more of a "life and death" struggle in India.

The only purpose this law has served in India so far, and I emphasise, the ONLY purpose, was to give sadistic and corrupt policemen the opportunity to brutalise and grab money from people in the name of "upholding morality". This law was a sort of "perk" for them, the way companies provide perks to employees. These policemen would lurk around public parks in the evenings, casing passersby and gauging how much they could expect to extort from someone. You can read in the text of the Court's judgment about how these sadistic policemen have indulged in anal and oral rape and other brutalisation of the very people they have taken into custody for "immoral behaviour" such as walking together holding hands. The police have even attacked voluntary organisations and jailed activists for providing information and services such as HIV prevention to the gay community.

This ruling will make a huge difference to the gay community in India. Especially, voluntary organisations can now freely offer counselling and support services to the gay community, regarding HIV, safe sex, etc, something which was practically impossible before. It has only taken 62 years since the British left India. This was one of their legacies; one that they themselves had got rid of from their own laws, but one that stayed on in India because of the ignorance and prejudices of the dominant heterosexual male community.

The fight is not over yet in India. But an important battle has been won.
8. 2009-07-02 19:32  
Am in Chandigarh at the moment and the TV is telecasting this historic event under headline news repeatedly. The Indian gay activists and LGBTQ community is understandably jubilant, while the religious leaders are less than happy.

When will Singapore's turn come, I wonder?!
9. 2009-07-02 19:53  
Gay's triumphant return.....
10. 2009-07-02 20:22  
Truly happy for India! loving it
11. 2009-07-02 22:11  
It is a strong, powerfully worded, well reasoned and based judgement. Undoubtedly a momentous 'leap forward' in the ever ongoing struggle for equality for LGBTQ all around the world.
12. 2009-07-02 22:34  
Great for India! So much for Singapore self proclaim ASIAN VALUES, and their so called YARD STICK for Singapore! Now 2 of the biggest Nations in Asia don't have anti-gay law! I don't understand why we are so desperate to prove that we are OH-SO-BACKWARD!
13. 2009-07-02 22:51  
..finally the home coming judgment after a great, great, happy, boisterous "Delhi Gay Pride 2009"!! What a relief for many of us..and Indians! Good going India!

Does that means now gays can marry in Delhi/India?? Hello, all Singaporeans! Shall we all go to India and marry in Delhi legally??
14. 2009-07-03 06:26  
Bravo Delhi ....bravo ...indeed any kind of discrimations IS discrimination ....whether it is discrimination based on skin, religion, sexuality , ability/inability, physical appearance or any type of minority groups ...

Thus , all PLU out there ...we should protest against any form of discrimination NOT just to discrimination against PLU/LGBT !!

Heal the world ...make it a better place ...for you and for me ....and the entire human race.
15. 2009-07-03 06:53  
great. a milestone for LGBT India. but also we should be reminded that LGBT community in India should be more responsible too now that gay sex is on the road for being legalized.
16. 2009-07-03 13:40  
Just saw the film Gandhi again recently...
I hope he would be proud to see yet another of Queen V's claws gently and politely, albeit firmly detached from Indian soil... but would he ? homophobia sometimes shows its sour face in unexpected places... and people.
17. 2009-07-03 17:24  
Congratulations to Naz, their persistence paid off. Good to see this unjust old law being eliminated.

Am looking forward to reading what looks like an impressive judgement. There are still some great judges around.
18. 2009-07-03 17:40  
I cant, but feel proud, joyous and ecstatic in my country taking this lead. Although far from being granted "liberties" like elsewhere, this atleast is a step in the right direction.

The past few days, this has been the centerstage of media and its heartening to say the least, to see people talking and discussing this more openly (for right or wrong reasons)

Section 377 is a hand-me-down from the British raj. It is rooted in Victorian sensibilities, which are an anomaly in our social milieu, past and present. Homosexuality as an aberration of nature is not a view upheld in our socio-cultural tradition. It is only seen as such by some because they now view homosexuality through borrowed lenses.

Hope this augurs changes in other South Asian communities..
19. 2009-07-03 18:07  
Fabulous! Great! Wonderful news! I hope we can read the same news regarding Singapore soon. These beautiful countries must get rid of the old stupid homophobic british law.
20. 2009-07-03 19:18  
ajs I understand your enthusiastic reaction, but you also have to ask yourself why this "outdated" law managed to linger on for such a long time in Indian society. When independance finally arrived it was huge, and in the midst of that great turmoil many English things were happily discarded, so why not the rigid attitude towards sex in general and homosexuality in particular ? Like it or not, Section 377 must have somehow echoed something that was there in Indian society, willing to merge with Victorian cork-up-the-ass laws and find itself a legal form of sorts. I do not think homophobia is strictly a Victorian aberration, though of course I only wish it was, because that would mean the end of the tunnel can't be that far for gays all over the planet. Not so...
21. 2009-07-03 19:58  
ajs I understand your enthusiastic reaction, but you also have to ask yourself why this "outdated" law managed to linger on for such a long time in Indian society, all the way until 2009.

When independance finally arrived in India it was huge, and in the midst of such great turmoil many English things were happily and RAPIDLY discarded, so why not the rigid attitude towards sex in general and homosexuality in particular ?

Like it or not, Section 377 must have somehow echoed something that was there in Indian society, willing to merge with Victorian cork-up-the-ass laws and find itself a legal form of sorts. I do not think homophobia is strictly a Victorian aberration, though of course I only wish it was, because that would mean the end of the tunnel can't be that far for gays all over the planet. Not so...

See for instance how homophobic Russia was under Stalin... and how it still is... how complicated the Chinese attitude is towards gays... how terrifying the laws in Iran etc etc
Change countries, change cultures, religions, time... but that old demon is almost always there under one form or another.
Again if we could reduce homophobia to a Victorian aberration, it would be great, but it simply isn't true.
22. 2009-07-03 20:04  
sorry guys, I tried to delete #20 and replace it by #21 but it doesn't work. Didn't mean to flood the board with various versions !
23. 2009-07-04 02:40  
India did it, but why not Malaysia and Singapore?

Well, I think it’s not fair to make comparison, bearing in mind that India’s LGBTI situation may be very different from that of Malaysia and Singapore for example, in that the gay community in India has been perpetually persecuted by law enforcement officers, of all people, who should have been their protectors, even to the point of being anally and orally raped and dehumanized, all because gay sex is illegal under Section 377 of the Indian penal code. It is partly due to such gross exploitation of a sexual minority that led the Delhi High Court to rule in favour of decriminalization of consensual same-sex acts between adults in private. It is an irony that the enforcers of this law engage in sodomy themselves in the full sense of the word which involves sexual violence, while those they arrested and charged have only been involved in consensual sex without hurting anyone. How much more hypocritical can they get?

Moreover, the social stigma attached to gay people under Sec 377 has prevented many MSM’s from coming forward to get tested for HIV for fear of being stigmatized and persecuted once they disclose their MSM activities. This increases the rate of HIV transmission as those who might be HIV+ are deprived of the counseling and treatment they need in order to curb the spread of the virus. That’s why NGOs such as Naz Foundation have been lobbying so hard to have Section 377 repealed once and for all. Eight long years of agitation have finally paid off! It’s certainly a breath of fresh air for Delhi’s LGBTI community. Let’s hope that the rest of India will catch on as her people begin to wake up and take the issues of human rights and equality more seriously.
24. 2009-07-04 18:44  
Since India was also a British Colony. Singapore should follow suit. Cuz being gay is not against any law.
25. 2009-07-09 20:17  
a quite impossibile thing in Indonesia..............

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