India Court Legalises Gay Sex

In a judgment that followed eight years of judicial battle, the Delhi High Court struck down section 377 of the Indian Penal Code (IPC), quoting India’s first Prime Minister Jawaharlal Nehru to emphasise that the constitution guaranteed homosexuals rights equal to those enjoyed by other citizens.

In a courtroom packed with around 100 people, half of them activists, Chief Justice Ajit Prakash Shah and his colleague said that if not amended, section 377 would be in violation of article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

Many of the gay rights activists from India and abroad present in the court broke into tears as the order was passed while others shouted for joy. Outside, gay activists burst into celebrations and shouted slogans hailing the judiciary. Others held a variety of hand-written placards including one that said in bold letters: "377 Quit India".

An unprecedented move

Nitin Karani, a gay rights activist, said the order set a precedent that effectively decriminalised consensual gay sex nationwide.

“It is really great. It is for the first time that we have a judgment of a high court saying that homosexuality and gay sex is not illegal and homosexuals are not criminals and it is not a crime to be a gay in the country. It is a question of law, a question of human rights and public health.”

Section 377, a relic of the British Raj, relates to "unnatural offences" and says that "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished."

Religious leaders are upset

The reaction from Hindu, Muslim and Christian leaders was swift and bordered on anger and disbelief. Kamal Farooqi of the All India Muslim Personal Law Board said it was a sad day for civilized society.

“This is just to please our Western and American friends. In Indian society this is not acceptable to us. Basically, whether I am a Muslim or a Hindu or whatever, we are a religious society and our temperament is that homosexuality is nothing but an unnatural act.”

Gay sex has long been a forbidden subject in India, where many still regard homosexuality as a disease. In the last three years, however, the country's largely closeted homosexual community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai.

A long battle

Anjali Gopalan of the Naz Foundation, which works to prevent the spread of HIV and AIDS, had filed a petition before the Delhi High Court in 2001 seeking the abolition of the section.

“It has been a long battle you know. This I think is just the first step in an even longer battle. I don’t think this is where it is going to stop or should stop. What happened today is that homosexuality has been decriminalized. But I don’t think people have all the rights they are entitled to under the constitution.”

For the moment, gay rights activists have reason to rejoice. But there is every possibility the court's verdict will be challenged in India's Supreme Court.

Author:Murali Krishnan (New Delhi)
Editor: Grahame Lucas