About Time!

In a recent landmark ruling Delhi's highest court has decriminalized homosexual sex among consenting adults in India's capital. 

NEW DELHI —In a landmark ruling Thursday that could usher in an era of greater freedom for gay men and lesbians in India, New Delhi’s highest court decriminalized homosexuality.

“The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone,” judges of the Delhi High Court wrote in a 105-page decision, India’s first to directly address rights for gay men and lesbians. “Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized,” the decision said.

Homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting “carnal intercourse against the order of nature with any man, woman or animal.” The law, known as Section 377 of India’s penal code, has long been viewed as an archaic holdover from colonialism by its detractors.

“Clearly, we are all thrilled,” said Anjali Gopalan, the executive director and founder of the Naz Foundation, an AIDS awareness group that sued to have Section 377 changed.

“It is a first major step,” Ms. Gopalan said during a news conference in Delhi, but “there are many more battles.”

Clearly not everyone is "thrilled" by the groundbreaking decision. See here and here.

Thursday’s decision applies only in the territory of India’s capital city, but it is likely to force India’s government either to appeal the decision to the Supreme Court, or change the law nationwide, lawyers and advocates said.

Outside the hall where the Naz Foundation news conference was held, dozens of young men and women gathered to celebrate, along with a group of hijras, men who dress and act like women who classify themselves as belonging to neither gender. “It is a victory of human rights, not just of gay rights,” said one 22-year-old man who only identified himself as Manish.

Gay men and women have rarely been prosecuted under Section 377 in India in modern times, but it has been used to harass, blackmail and jail people.

Britain legalized homosexuality in England and Wales in 1967, but many of its former colonies, including Singapore, Zimbabwe and Malaysia, still retain strict laws against same-sex relations.

India’s society is generally unwelcoming of homosexuality except in the most cosmopolitan circles. It is not uncommon for gay men and women to marry heterosexuals and have families, while carrying on secret relationships with members of the same sex.

In their decision, Chief Justice A. P. Shah and Justice S. Muralidhar declared Section 377, as it pertains to consensual sex among people above the age of 18, in violation of important parts of India’s Constitution. “Consensual sex amongst adults is legal, which includes even gay sex and sex among the same sexes,” they said.

For more on the history of homosexuality and the prevailing gay culture in India see Namit Arora's essay.

Comments

[Joe]

Nice!

[D]

About time indeed. I expected the verdict - the language of the section is obviously unconstitutional - but it's nice to see it spelled out.

I've been clicking through newspaper and other web fora a bit to gauge the reaction, and maybe there's a blog post somewhere there, but I'm still mulling things over. I AM a bit surprised to see so tepid a response from the RSS/Shiv Sena/MNS/VHP types. It's not been that long since they were going crazy over Valentine's day celebrations, and it seems like they'd be able to work up a decent sized gay panic. Maybe it's just that the elections are over, but perhaps misogyny for its own sake is a larger motivator for them than controlling expressions of sexuality in general (lesbians being invisible and all that)

[Robin Smith]

I came to the blog when searchging for Accidental Legal blogg and found the blog is really informative.

http://oopslaw.changjy.com/2009/09/22/know-your-accidental-legal-rights-2/