- Share This Post
- Pin It
- 0
-
Sparkle (0)
In a historic ruling this month, an Indian high court asked that private sex among consenting gay adults be decriminalized, observing that the 150-year-old colonial law that characterized gay sex as an unnatural offense against the law of nature violated fundamental equality rights guaranteed by the Indian constitution. The law, however, will still apply in case of minors and the government needs to amend the law to reflect the ruling. But that has to wait. The Supreme Court has agreed to hear a petition against the ruling decriminalizing gay sex. It's unlikely the government will make any decision prior to the court's decision. A Supreme Court ruling will be applicable across the country.
Meanwhile, the gay community is celebrating its first major victory in their decades-long battle for social acceptance. As are AIDS awareness groups that have been urging the courts to overturn or read down Article 377 of the Indian Penal Code, which has been driving underground a vulnerable target group, dampening efforts to fight the killer disease.
In its conclusion, the Delhi High Court ruled:
Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination. [...] In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
[...]We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.
The movement: This finely worded ruling that has come for much praise from the gay community and its supporters, ironically, may have never come: After the petition was first filed in 2001 by AIDS awareness non-profit Naz Foundation (India), the same high court had dismissed the case in 2004, saying the parties that had filed the plea were not directly affected by the law. Naz took their fight to the Supreme Court, which ordered the lower court to hear the case.
As we had discussed in BlogHer posts earlier (Gay India Comes Out in Full Force, Sexual Minorities in India Fight Archaic Law), it has been one long journey for the gay community in India. Although gay adults are not known to have been actually punished by law, they were prime targets for harassment and extortion by the police.
Of course, social acceptance is going to take a long while. But the ruling, for the first time, acknowledges that adult gay sex is not s crime. This is a big baby step for a community that has been marginalized for far too long. As Sunil Mehra, former editor of Maxim magazine (India), says in an article on BBC: "It feels good to be legitimate in the textbooks again":
The policeman who extorts gays is rendered powerless because the system has empowered them: acknowledged their right to exist, to live a life of dignity and never be intimidated again. To be mainstream. And that's important.
Celebrating the ruling, Jalaj Vaivaswat blogs at Rediff.com:
It is a blessed day that one is alive to see the beginning of the end of this evil law. The law which is responsible for the destruction of so many lives . Which was touted as a defence against paedophilia … implying that gay people were paedophiles . The law which was an instrument of the law enforcing agencies to harass , humiliate and financially exploit gay people . The law which made lives of so many Indians a living hell. That accursed law is on its way out. May God bless the judges who delivered a judgment that delivered people from oppression and misery.
Firebolt of The Frozen Flames is ecstatic to see the law change in her country, but is wary of a social backlash. She (my educated guess is that Firebolt is female) is celebrating but cautiously:
This is so amazing. I had never ever thought that my country would get here, to this point, so soon. I used to wonder whether I would ever see homosexuality become legal in my life, in this country. Looks like I underestimated the integrity of the Judiciary and of my countrypeople.
[...]
Indian society still remains mostly against homosexuality. In a country where there have been cases
