Indian court decriminalizes consensual gay sex

A court ruled Thursday to decriminalize homosexuality in the Indian capital, a groundbreaking decision that could bring more freedom to gays in this deeply conservative country.

The Delhi High Court ruled that treating consensual gay sex as a crime is a violation of fundamental rights protected by India’s constitution. The ruling, the first of its kind in India, applies only in New Delhi.

“I’m so excited, and I haven’t been able to process the news yet,” Anjali Gopalan, the executive director of the Naz Foundation (India) Trust, a sexual health organization that had filed the petition, told reporters. “We’ve finally entered the 21st century.”

But some religious leaders quickly criticized the ruling. “This Western culture cannot be permitted in our country,” said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.

The court’s verdict came more than eight years after the New Delhi-based foundation filed its petition — not unusually long in India’s notoriously clogged court system. The verdict can be challenged in India’s Supreme Court.

Sex between people of the same gender has been illegal in India since a British colonial era law that classified it as “against the order of nature.” According to the law, gay sex is punishable by 10 years in prison. While actual criminal prosecutions are few, the law frequently has been used to harass people.

The law itself can only be amended by India’s Parliament and gay rights activists have long campaigned for it to be changed. The government has remained vague about its position on the law, and Law Minister M. Veerappa Moily said he would examine the high court’s order before commenting.

The court’s verdict, however, should protect New Delhi’s gay community from criminal charges and police harassment.

“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 statement. “This long-awaited decision testifies to the reach of democracy and rights in India.”

While the ruling is not binding on courts in India’s other states, 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.

Rights activists say the law, also popularly known as 377, or section 377 of the Indian Penal Code, sanctions discrimination and marginalizes the gay community. Health experts say the law discourages safe sex and has been a hurdle in fighting HIV and AIDS. Roughly 2.5 million Indians have HIV.

Homosexuality is slowly gaining acceptance in some parts of India, especially in its big cities. Many bars have gay nights, and some high-profile Bollywood films have dealt with gay issues.

Still, being gay remains deeply taboo, and a large number of homosexuals hide their sexual orientation from their friends and families.

Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India’s deeply held traditions.

“We are totally against such a practice as it is not our tradition or culture,” said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that while homosexuals should not be treated as criminals, “at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable.”

http://www.google.com/hostednews/ap/article/ALeqM5itW64QhaqClSx7DzR4CL78Kxl8NgD996ARCG0

You can download the text of the judgement High Court of Delhi on 2 July 2009 which finds the Section 377 of the Indian Penal Code ” insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution” as a pdf file.

Homosexuality: Chronology of eight year-long legal proceedings

Following is the chronology of the eight year-long legal proceedings which ended on Thursday with the Delhi High Court legalising gay sex among consenting adults.

* 2001: An NGO fighting for gay rights, Naz Foundation files PIL seeking legalisation of gay sex among consenting adults.

* Sept 2, 2004 : Delhi High Court dismisses the PIL seeking decriminalisation of gay sex.

* Sept, 2004: The gay right activists file review petition.

* Nov 3, 2004: The HC dismisses the review plea. * Dec, 2004: Gay rights activists approach the apex court against the order of the High Court.

* Apr 3, 2006: The apex court directs the HC to reconsider the matter on merit and remands the case back to High Court.

* Oct 4, 2006: The HC allows senior BJP leader B P Singhal’s plea, opposing decriminalising gay sex, to be impleaded in the case.

* Sept 18, 2008: Centre seeks more time to take stand on the issue after the contradictory stand between the Home and Health ministries over decriminalisation of homosexuality. The Court refuses the plea and final argument in the case begins.

* Sep 25, 2008: The gay rights activists contend that the government cannot infringe upon their fundamental right to equality by decriminalising homosexual acts on the ground of morality.

* Sep 26, 2008: The Court pulls up the Centre for speaking in two voices on the homosexuality law in view of contradictory affidavits filed by Health and Home ministries.

* Sep 26, 2008: Centre says that gay sex is immmoral and a reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.

* Oct 15, 2008: The High Court pulls up the Centre for relying on religious texts to justify ban on gay sex and asks it to come up with scientific reports to justify it.

* Nov, 2008: Government in its written submission before the High Court says judiciary should refrain from interfering in the issue as it is basically for Parliament to decide.

* Nov 7, 2008: High Court reserves its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts.

* July 2, 2009: High Court allows plea of gay rights activists and legalises gay sex among consenting adults.

http://economictimes.indiatimes.com/News/PoliticsNation/Homosexuality-Chronology-of-eight-year-long-legal-proceedings/articleshow/4727797.cms

See also: Queer Parade Defies Anachronistic Indian Law



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