Jubilation greets Indian court ruling that strikes out anti-gay law

Posted by NewsEditor at 5:32 AM (PT)
In: Featured, international, law

Thursday July 2, 2009

Source: AFP, Reuters, Times of India, Associated Press, Hindustan Times, Day After
India’s Victorian-era law against gay sex is discriminatory and therefore a "violation of fundamental rights" accorded under the constitution, a court in New Delhi has ruled in a long-awaited landmark decision.

The ruling, which effectively decriminalizes gay sex, was greeted with jubilation by a sizable crowd outside the Delhi High Court building, Mansi Tewari reports for Day After, an Indian magazine. Men and women in the crowd hugged each other without fear and tears of joy rolled down the eyes of many in the crowd when the when the decision was announced.

“We have finally entered into the 21st century,” said Anjali Gopalan, executive director of Naz Foundation, a leading health and gay rights lobby. Naz Foundation filed the petition that the court ruled on today.

“I am feeling ecstatic and had our fingers crossed throughout,” Gopalan told Day After. “It is a progressive judgment and the now we all are ready to celebrate the spirit of ‘inclusiveness’. We welcome the Court’s decision.”

“My god! What a progressive judgment,” declared Sunetra Choudhury on India’s NDTV [see clip at end of post]. “I’m so proud.”

Jubilation greets Indian court ruling that strikes out anti-gay law [contd.]

In a blog hosted by the newspaper, Hindustan Times out gay reporter Mayank Austen Soofi explained that he had trouble containing his excitement when filing a story about the decision:

But when I called gay and lesbian friends who were present in the court, asking them for newspaper quotes, I couldn’t help wishing: “God, I should’ve been at ground zero!”

As I heard their thrilled voices, as I noted down their words on my pad, a thrill ran up my spinal chord, into my brains. It made my heady dizzy and fingers tremble.

Could this be true? After all, this is India. Gay people are a minority so strange that they have no caste, no religion, no race. They are not even untouchables. They are just not supposed to exist. But now, will that black shroud that cover them disappear? Will that refusal to ’see’ them finally begin to end with this judgment? Will the invisible people become visible? Will they finally be muggles like everyone else

Many supporters of LGBTQ rights were seen celebrating with sweets and smearing each other with vermilion, Reuters reports.

Thursday's court verdict came after nine years of legal proceedings initiated by Naz and other Indian LGBTQ groups.

[See chronology of the case at Indian Express.]

“This is a long awaited and incredible judgment,” said gay rights activist Gautam Bhan, according to Reuters.

“The judges in their verdict spoke about inclusivity, quality and dignity. They spoke about a vision of India as an open, tolerant society and to hear all this from the Delhi High Court was amazing,” Bhan said.

“I feel very proud to be an Indian today. This was a very just ruling,” said out gay fashion designer Wendell Rodericks.

“The entire legal community was in favor, I think, of the act being declared legal if it was between consenting adults,” Rodericks said.

“This legal remnant of British colonialism has been used to deprive people of their basic rights for too long,” Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch, said in a press statement. “This long-awaited decision testifies to the reach of democracy and rights in India.”

“Consensual sex amongst adults is legal which includes even gay sex and sex among the same sexes,” said a two-judge bench of the court. The verdict said the current law will still apply in the event of sex without consent.

“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,” the judges wrote.

The ruling strikes a portion of the country’s penal code known as Section 377. The current law, which was adopted when the country was a British colony, bans “sex against the order of nature,” which is widely interpreted to mean homosexual sex in India.

Although prosecutions were rare, LGBTQ activists said police used the law to harass and intimidate members of their community. Conviction carried a fine and a maximum 10-year jail sentence.

LGBTQ rights activists argued during the lengthy court deliberations that the the law, framed in 1861, was an impediment in fighting against HIV/AIDS because many queer people efuse to come out, fearing harassment by authorities.

The precise process through which the ruling will be applied is not clear in the various reports.

Reuters reports that the ruling by the New Delhi High Court is non-binding outside the Indian capital, but lawyers supporting the petition against Section 377 told the news service that it sets a precedent that effectively decriminalizes consensual gay sex nationwide.

AFP reports that the decision applies to all of India, but notes that it can be appealed at the Supreme Court.

“The government can't ignore this,” Naz Foundation’s Gopalan told reporters after the ruling was announced, according to Reuters.

Times of India reports that court said that its judgment will hold until Parliament chooses to amend the penal code.

Tripti Tandon, a lawyer for the Naz Foundation, said she hoped the ruling would have a “persuasive” affect.

“This is just the first step in a longer battle,” Gopalan said.

In the days prior to release of the ruling, some statements from government ministers suggested that India’s recently re-elected conservative government would consider legislative intervention to scrap the colonial law and the ruling could boost an increasingly vocal pro-gay lobby in India that demand legislative repeal of the law.

But Times of India notes that the government may now feel it’s been spared the burden of amending a provision that is laden with what the paper calls “religious and cultural sensitivities”.

Law Minister Veerappa Moily declined to offer any immediate comment on the ruling, telling reporters at parliament that he needed to study the text properly.

In a country where public hugging and kissing even among heterosexuals invites lewd remarks and sometimes beatings, gay sex has been a taboo, leaving the government unsure how conservative Indians would react if the law was repealed.

But in recent years the country's previously closeted queer community has raised its profile, especially in the big cities. Queer pride marches were held last month for the second year in major cities, including New Delhi and Mumbai. Many bars have gay nights, and some high-profile Bollywood films have dealt with gay issues, AP reports.

Outside the courts building, Hillol Dutta celebrated along with his boyfriend Aditya Bandho who was one of the lawyer on this case. Dutta told Day After, “We have been together for 9 years now but we always feared the police and were constantly worried what if our privacy were violated. But today we have nothing to fear about.”

Bandho called the court’s judgment an “historic first step”, but said with a sigh of relief, “We have finally got what was due to us.”

In a preview of today’s ruling the justices who heard the case, had criticized from the bench former government ministers who argued that the anti-gay law should be maintained for religious reasons.

In today’s ruling, the judges observed that Indian society traditionally displayed inclusiveness in every aspect of life and recognized a role in society for everyone, Hindustan Times reports.

“Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized,” the Chief Justice A. P. Shah, writing the judgment for the court, said.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination, the court said.

“This was the spirit behind the resolution of which Jawaharlal Nehru spoke so passionately,” the Bench said referring to the Objective Resolution moved by him on December 13, 1946 at the Constituent Assembly debate.