ST: Delhi ruling a victory for gays

5 July 2009
Sunday Times

Delhi ruling a victory for gays 

by P. Jayaram, India Correspondent 

Exactly a decade ago when homosexuality was still a very hush-hush affair in India, more than a dozen men staged a march in Calcutta (now known as Kolkata), the teeming eastern metropolis.

The rag-tag bunch, wearing yellow T-shirts with the words ‘Walk on the Rainbow’, simply wanted to visit officials, judges, non-governmental organisations (NGOs) and anyone who mattered to tell them ‘what we were all about’.

The marchers were stopped by a curious grand old woman. ‘What on earth are you walking around for?’ she asked. Mr Ashok Row Kavi, one of the marchers, replied: ‘Oh, we are homosexuals and we are asking the government to get rid of Section 377 of the Indian Penal Code.’

Seeing her puzzled look, he explained: ‘You see, there is this really awful law that says that anal or oral sex is against the law of nature and must be punished with 10 years in jail even if both parties consent.’

‘Before I could explain further, I had an outraged Bengali (as the people of West Bengal, of which Kolkata is the capital, are called) lady on my hands. ‘You mean to say that this useless government has nothing to do but peep into everybody’s sex life? You mean even your bottom is not your own?’ She seemed to be getting really mad,’ Mr Kavi, a street counsellor for the NGO Hamsafar Trust and one of the most vocal gay rights activists, recounted in an article in Hindustan Times last Sunday.

‘It was then that I realised that India’s heart is good and gracious. The kind of homophobia I would see in New York or London was just missing even in a hidebound great city like Calcutta,’ he wrote.

The Delhi High Court’s ruling last Thursday, striking down Section 377 IPC as a violation of the Constitution and thus legalising homosexuality between consenting adults, showed that the judges too might have ‘good and gracious’ hearts. In its landmark judgment, the court overturned the 150-year-old British colonial era law which ‘criminalised consensual sexual acts of adults in private’ and ruled that it violated ‘fundamental rights to personal liberty, equality and prohibition of discrimination’ enshrined in the Constitution.

Section 377 IPC says that ‘whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine’.

A two-member bench of the court comprising Chief Justice A.P. Shah and Justice S. Muralidharan ruled that the law would hereafter be restricted to non-consensual penile ‘non-vaginal sex’ (rape by a homosexual) and ‘penile non-vaginal sex involving minors’ (paedophilia).

Quoting India’s first prime minister Jawharlal Nehru, the judges said: ‘If there is one constitutional tenet that can be said to be the underlying theme of the Indian Constitution, it is inclusiveness.’

The judgment was prime news on television channels and the main lead in many national newspapers. Most papers’ editorials welcomed it.

The judgment was in response to a petition filed by Naz Foundation (India) Trust, a Delhi-based NGO engaged in spreading awareness about HIV-Aids, and Voices Against 377, a gay activist group, seeking decriminalisation of homosexuality.

Ironically, the same court had dismissed the petition in 2004 on the ground that no case had been made out and that the petitioners had no locus standi. The petitioners appealed to the Supreme Court, which sent it back to the High Court, asking it to consider the petition on merit.

As jubilant gay activists hugged one another and hailed the judgment, Ms Anjali Gopalan, founder and executive director of Naz Foundation, exulted: ‘This is a momentous judgment, although it is only the first step in an even longer battle…I think it is historic. We have taken the biggest step into the 21st century.’

Celebrated author Vikram Seth, whose bisexuality his mother Leila Sethi had written about in her memoir On Balance, said about the judgment: ‘It is wonderfully good, humane and lucid.’

Predictably, religious leaders slammed the ruling.

‘Homosexuals are mentally ill and need hospitals, not legal validation. The judgment will increase the sickness and harm the society. I will challenge it,’ said Swami Ramdev, a Hindu spiritual leader and yoga guru.

Imam Ahmed Bukhari, chief cleric of Delhi’s largest mosque Jama Masjid, said: ‘It is absolutely wrong to legalise homosexuality. We will not accept any such law.’

Father Babu Joseph, spokesman for the Catholic Bishops’ Conference of India, said: ‘Homosexuals should not be thrown in jail or discriminated on the basis of their orientation. However, their behaviour cannot be considered normal. The facts are that homosexuality is against the natural order and anything that goes against the natural order does not last over time and will have a negative impact on the lives of people and society.’

Unofficial estimates of the number of homosexuals in India vary between 20 million and 130 million.

While the government can appeal to the Supreme Court against the High Court verdict, sources say it is unlikely to do so. On the contrary, it would have been relieved that the court had spared it a politically difficult decision, particularly in view of the opposition by religious groups, they said.

On the record, however, Home Minister P. Chidambaram, who analysed the judgment with Law Minister M Veerappa Moily and Health Minister Ghulam Nabi Azad last Friday, said that the Department of Law had been asked to prepare a note on the options available before the government.

‘We will take a look at the note and decide what needs to be done,’ he said.

Reactions of the man in the street were mixed. A man identified as Anand wrote to The Indian Express: ‘I am a staunch Hindu (and straight) and I welcome this judgment. Those morons who are crying about ‘divine’ laws, et cetera, should remember that the same ‘divine’ laws allowed women to be burnt as witches and wrapped them in burqas.’

Navin, another reader, wrote: ‘Now the terrorists won’t have to attack us any more. Gays are doing the job of destroying India for the terrorists. Seriously, something is wrong with the judges. They have lost their ability to think rationally and make a decision that ensures stability and sustainability of the society and culture.’

Technically, the ruling applies only to Delhi. But Ms Tripti Tandon, lawyer for Naz Foundation, said that while the Delhi High Court’s order is not binding on other states, the ruling would have a ‘persuasive’ effect across the country.

It is not known whether the gay communities in other states, encouraged by the Delhi High Court verdict, would approach their respective High Courts with similar petitions.

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