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. 

India’s Gay Community Comes Out of the Closet

Don't tell Maggie Gallagher and Brian Brown and their fellow Christofascists, but even in India - a country targeted by the National Organization for Marriage for fanning homophobia and attacking Starbucks for its pro-gay positions - gay rights are advancing.  Part of the rise of gay rights correlates to the repeal of the British rule era Section 377 of the 1860 Penal Code, but in India education levels are soaring and, of course, access to the Internet make it even more difficult to keep the populace uninformed and ignorant on LGBT issues.  An article in Newsweek looks at the in some ways rapid changes in attitudes in India.  Here are some excerpts:

On a sunny Sunday afternoon, Mumbai’s western suburb of Bandra—home to observant middle-class Roman Catholic and Sunni Muslim families—is packed with people strolling the seaside promenades. The main streets are abuzz with vendors selling cheap shoes and colorful scarves. On the quieter, tree-lined lanes, customers visit specialty boutiques.

Down the 16th Road, a rainbow flag hangs outside one such store: D’kloset. On its exterior, there is a mural of a man pulling another out of a closet. “No, no,” the latter says. “I’m not coming out.” D’kloset owner Inder Vhatwar will tell you that it is time for gay people in India to step out of the closet that has imprisoned them for more than a century.

Businesses targeted at gays, such as D’kloset, are still rare in India, but it is significant that such enterprises are opening at all in this largely conservative country, where until 2009 same-sex relations were considered a crime. “When I opened the store I thought that religious groups would come and break the glass,” said Vhatwar, who trained as a fashion designer in London. “But nothing happened.”

In the 149 years since homosexuality was outlawed by India’s colonial British administration, no government had the courage to repeal the law. That was left to the Delhi High Court: on July 2, 2009, the court decriminalized same-sex intercourse in a landmark case commonly referred to as 377, a reference to a section of the 1860 Penal Code that bans sexual activity “against the order of nature.” The decision was appealed earlier this year in the Supreme Court, which heard objections from 10 social and religious organizations.

Even if the decision is upheld—as gay-rights groups and legal experts think it will be—India’s gays and lesbians will still not have the same rights as heterosexuals. They will have no protection against discrimination at work or school, or when buying or renting a house. Same-sex marriage will still not be legal, nor will adoption. Such advances will require new laws from India’s parliament—and no one expects that to happen any time soon.

Still, after more than a century of being spurned by their families, reviled in public and harassed by police, India’s gays and their supporters say the 377 ruling is encouraging a gradual emergence from the shadows. “They’re not so open with their families yet, but they feel relatively more free now,” said Anand Grover, lawyer and director of the Lawyers Collective HIV/AIDS Unit. While the situation remains difficult for many homosexuals, particularly in rural areas, Grover points to the new gay tourism market, the spread of queer parties at nightclubs, and the rising divorce rate among gay men who had previously been pressured to marry women.

There are indeed signs of a transition underway in India. Gay-themed businesses are opening in areas where they once would not have dared to flaunt their sexuality. In 2011, the soap opera Maryada: Lekin Kab Tak? (Honor: But at What Cost?) became the first TV serial to feature an openly gay character. Gay protesters have jettisoned the masks they used to protect their identities during equal-rights marches. Talk shows feature questions about homosexuality and venues host events explicitly marketed for gays and lesbians.

There are no official estimates of how many of India’s 1.2 billion people are gay or lesbian.  .   .  .  .  The Humsafar Trust, an NGO promoting lesbian, gay, bisexual, and transgendered (LGBT) rights, puts the number at more than 70 million. Even before the 377 ruling, the most cosmopolitan among them had already started to go public. In 2008, fashion designer Sanjay Malhotra launched Indjapink, an online gay travel agency.

The Internet has been big in helping gay people find each other, gradually replacing cruising for partners in parks and public toilets. Websites like Facebook and guys4men.com have become the best way to find a gay sex partner, join gay social events, and participate in a LGBT community that is clearly tired of hiding.

The greatest push for LGBT openness is happening among India’s cultural elite, in the realms of academic and literature. This year, the government-run Indira Gandhi National Open University—the largest higher-learning institute in India—launched a post-graduate diploma program in Women’s and Gender studies, which includes courses on queer cinema, masculinity, and gender on television. 

For many gays in India, the most important challenges begin closer to home—at home, actually. At the Humsafar Trust headquarters in Mumbai, many people arrive asking for advice and support in coming out. “A lot of people who meet up here are not ‘out’ to their families,” says Ankur Srivastava, from the youth group Yaariyan. He adds that it’s even harder for women, who have their own group called Umang. “It’s not that men have it easy, but many women don’t even have a chance,” Srivastava says. “They’re told that their first duty is to watch their husbands.”

Despite the difficulties, India’s gays and lesbians are trying to stay positive. There is evidence that the mainstream media and government would support the gay cause in the unlikely event that the Supreme Court refuses to uphold the 377 ruling. In February, a lawyer for the Home Ministry told the Supreme Court that homosexuality was immoral. Within a few hours, the ministry released a statement calling his word choice a “miscommunication” and declared he had been reading an outmoded statement. Several days later, the attorney general said that the federal government was not opposed to gay rights, and called the 1860 ban a law imposed by British colonialism and unreflective of Indian values. Lawyer Anand Grover agrees: “India never had a problem with homosexuality” before the arrival of Victorian-era Christianity in the 19th century, he says, noting that same-sex practices were tolerated in the culture when the British arrived.

Needless to say, I applaud the advances in India and hope they continue and increase in their pace.  As for the hate merchants at NOM, I won't be shedding any tears at seeing their ground for sowing anti-gay hatred in India becoming less and less fertile.

Delhi High Court: Homosexuality is Not a Disease

The court battle in India over the repeal of Section 377 which criminalizes gay sex has been interesting to follow since the Court continues to rebuff the government's attempts and arguments to retain the penal code provision based on religious and non-legal justifications. Since the Court role is to adjudicate civil legal matters - not religious doctrine or beliefs - the Court is doing its job. Would that the government would do its job and cease acting as a de facto representative for religious factions. Here are some highlights from the Times of India:

*

NEW DELHI: Irritated by the government's contradictory and unscientific stand on the issue of homosexuality, the Delhi High Court on Monday told the government that the homosexual trait in a human being cannot be termed as a "disease" and objected to the contention that if legalised, homosexuality would bring "devastation" to society. "Show us one report which says that it is a disease. A WHO [World Health Organization] paper says that it is not a disease but you are describing it as a disease."

*

The Court was hearing a bunch of petitions filed by gay rights activists seeking decriminalisation of gay sex among consenting adults which, at present, is an offence. Section 377 of Indian Penal Code provides a punishment upto life imprisonment for indulging in gay sex. Continuing with its opposition the government described homosexuality as "a most indecent behaviour" in society, pointing out that homosexuals comprise just 0.3% of the population and the interest of rest 99.7% population "cannot be compromised" just to accommodate their rights.

*

The Court, however, instructed him to "stick" to legal issues involved in the case and not raise political ones. Earlier, gay rights activists had contended that the government, by not decriminalising homosexuality, was infringing upon their fundamental right to equality on grounds of morality.

India May Repeal Outdated Anti-Gay Law

I hope this long overdue repeal effort is successful and that this last vestige of Victorian England fades into the trash can of history. With all the modernization occurring and the increasing levels of sophistication sweeping India, it's well past time that India catch up with the rest of the advanced world and medical and scientific knowledge concerning gays. Here are some highlights from the Times of India:

*

In 96 hours, the government might finally say it will scrap a 148-year-old law dating from British times, which criminalizes gay sex. It has taken eight long years and much debate for India to get to the stage of even thinking seriously about decriminalizing homosexuality. If Section 377 of the Indian Penal Code were repealed, it would be a giant leap forward for AIDS prevention in a country with one of the highest HIV infection rates in the world.

*

Though it has been sending mixed messages, activists say they take heart from the health minister's recent statement that the law needs changing. Speaking at the international conference on AIDS in Mexico City last month, Anbumani Ramadoss had said, Section 377 of the IPC, which criminalises men who have sex with men, must go.

*

Ashok Row Kavi, founder of India's first gay group Humsafar Trust, says, Gays are the largest group vulnerable to AIDS. But the government doesn't seem to understand this. Section 377 is one of the main reasons India has an estimated 2.35 million people classed as vulnerable to AIDS but who may not get treated.