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India decriminalizes homosexual sex

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India decriminalizes homosexual sex
Stephanie Nolen

New Delhi — Globe and Mail Update Last updated on Thursday, Jul. 02, 2009 07:43AM EDT

The New Delhi High Court struck down the law that criminalized consensual homosexual sex today, in a move that will radically change life for millions of gay, lesbian and transgender Indians and represents a huge shift for gay rights in the developing world.

In an unequivocal judgment, Justice S. Muralidhar invoked the country's first prime minister, Jawaharlal Nehru, and his belief in inclusiveness as laid out in the constitution.

“This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society,” the judge wrote. “Those perceived by the majority as deviants or ‘different' are not on that score excluded or ostracized. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination.”

The Indian government, which has been waffling in recent days between statements criticizing Section 377, as the law is known, and other comments saying any change would have to protect Indian culture, today said only that it will discuss the judgment.

Conservative religious groups were quick to criticize the ruling, saying homosexual behaviour violated the laws of all faiths and Indian cultural norms.

But such criticisms rolled off the backs of jubilant activists yesterday, who wept and embraced in the courtroom when the judge turned briskly to the end of the judgment and read out the key section, which made clear that consensual sex between people over 18 could no longer be prosecuted.

“The threat of exposure is enough to extort gay men for sex and money in India on a daily basis,” said Leslie Estefeves, a leader with a collective of activists called Voices Against 377, who shed anxious tears before the judge even began to speak.

“I hope people in India know not to let anyone get away with that any more.”

Tripti Tandon, a lawyer who brought the original challenge to the law on behalf of an AIDS organization called the Naz Foundation, said she hoped the government would recognize that the law is untenable, and not appeal. “If they do, it means a long, drawn out legal battle, but if they do we will be up for the fight,” she said.

The case has bounced between courts for more than eight years.

The law is a holdover from the British colonial administration, and it is similar to laws still on the books in many former colonies across the developing world. In India, it has rarely been used for prosecutions, but rather is a favourite tool of police who use it to threaten and extort gay men and transgender people in particular.

The judges refrained from entirely striking down the law because it is the only statute covering child abuse. Only the section covering adult behaviour was read down.

Wow, and only 6 years after the United States. Not bad at all.

I think this does indeed bode well for homosexuals in developing nations. I am glad to see a bit of good news for a change.

Do you think the timing is about right for this? Do you think it's too soon? About damn time?

What impact do you think this will have on rights and freedoms around the world?

Any progression toward equality for the LGBTQ people of the world is good, but this feels monumental.

I have always had a view of India as a conservative and religious place. I live in a city that has an immense South Asian population, and many of the people I have spoken to suggest that this is true. In a place that has religion so ingrained into their culture, it's wonderful to see such an improvement. It's not going to change the way that people perceive homosexuality - it will be a long time before that happens - but it will help prevent those with differing sexualities from being prosecuted.

I hope that the rest of the world can take India's lead.

This is huge! Thank you for posting the story, BG. I wonder how it will impact the culture.

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Originally Posted by genuinegirly (Post 2662558)

This is huge! Thank you for posting the story, BG. I wonder how it will impact the culture.

Yes, thank you for posting this. Like GG, I'm interested to see how this plays out.

I too hope this bodes well for other developing nations. We'll see.

If anyone here is of an "Indian" ethnicity, or knows enough about it, I'm curious if they can comment about whether homosexual sex is/has always been more accepted in India than in the U.S.

I could be way off and totally wrong, but for some reason I'm under the impression that homosexual sex, even between typically heterosexual people, is somehow more culturally accepted and practiced in India and parts of Asia than in the U.S. So if this is the case, perhaps that would be a clue why a "developing country" would be able to do this shortly after the U.S. did it.

As an aside, it sometimes strikes me as absurd that we would use "developing" to describe India, or China or some other places where culture has been highly developed and flourishing for thousands of years more than in the U.S. Western mechanized technical development and social economic development are only two forms of development and neither are stongly applicable to the question at hand.

pump the brakes.

Homosexuality was outlawed in the United States in 2003? I can't believe that.