Indian Supreme Court Strikes Down "Indefensible" Gay Sex Ban

Like so many places that the British colonized and where Christian missionaries took their anti-gay animus, India was subjected to the imposition of criminal penalties for same sex relations.  Also, like many other former colonies, India clung to anti-gay laws - many African countries are still doing so - bizarrely claiming that homosexuality was imported from the west when in fact it was anti-gay hate and religious bigotry that was imported.  Sadly, legislators in many such countries lacked the courage to challenge such idiocy and it has been left to the courts to end the anti-gay legacy of colonial rule.  Now, the Supreme Court of India has struck down that country's ban on homosexuality that dates back 150 years.  In a unanimous ruling, the Court deemed that archaic law irrational and indefensible.  Here are highlights from the New York Times on this most welcomed development:

India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, a groundbreaking victory for gay rights that buried one of the most glaring vestiges of India’s colonial past.

After weeks of deliberation by the court and decades of struggle by gay Indians, Chief Justice Dipak Misra said the law was “irrational, indefensible and manifestly arbitrary.”

News of the decision instantly shot around India. On the steps of an iconic courthouse in Bangalore, people danced, kissed and hugged tightly, eyes closed. In Mumbai, India’s pulsating commercial capital, human rights activists showered themselves in a blizzard of confetti.

The justices eagerly went further than simply decriminalizing gay sex. From now on, they ruled, gay Indians are to be accorded all the protections of the Constitution.

“This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch. With restrictions on gay rights toppling in country after country, the ruling in India, the world’s second-most-populous nation, may encourage still more nations to act, she said.

Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing — changing deeply held mind-sets another.

Much of this may also be true in other parts of the world. But what made India stand out from most — at least until Thursday — was its application of an anachronistic law drawn up by British colonizers during the Victorian era and kept on the books for 150 years.

The law banned sex considered “against the order of nature,” and thousands of people were prosecuted under it. But for gays in India, prison was only one of the risks. The law was often used as a cudgel to intimidate, blackmail and abuse.

In their ruling, the justices said homosexuality was “natural.” They also said that the Indian Constitution was not a “collection of mere dead letters,” and that it should evolve with time.

The court did not rule that the law being challenged, known as Section 377, should be excised altogether. It can still be used, it said, in cases of bestiality, for instance. But it can no longer be applied to consensual gay sex.

The justices seemed moved by the stories they heard from the petitioners about harassment, blackmail, abuse and persecution.  “History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said.

India has a complicated record on gay issues. Its dominant religion, Hinduism, is actually quite permissive of same-sex love. Centuries-old Hindu temples depict erotic encounters between members of the same sex, and in some Hindu myths, men become pregnant. In others, transgender people are given special status and praised for being loyal.

But that culture of tolerance changed drastically under British rule. India was intensely colonized during the height of the Victorian era, when the British Empire was at its peak and the social mores in England were austere.

In the 1860s, the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex.

Not surprisingly, those most be moaning and opposing the ruling were "Christian" groups, some likely bankrolled by American Christofascists who continue to export anti-gay hatred around the world.