Indian High Court Says Ban on Gay Sex Unconstitutional

July 2, 2009 2:40 AM

New Delhi legalizes homosexuality.In a landmark ruling, the Delhi High Court has for the first time in India declared the British-era law against homosexual sex unconstitutional. Is this India's Stonewall?
posted by Azaadistani (22 comments total)

I find it weird that they quoted "India's Catholic Bishop Council" but there's been no noise from right-wing Hindus/Muslims etc. Well with the former it's probably coz their political allies got slammed recently so they're not feeling so fidgety. Also maybe because it's such a stigmatized/marginal issue that only people within certain cultural spheres are paying attention. The politics of this could have gotten extraordinarily nasty.
posted by Non Prosequitur at 2:53 AM on July 2

New Delhi legalizes homosexuality

Won't that take all the fun out of it?
posted by orange swan at 3:41 AM on July 2 [2 favorites has favorites]

That's very cool, especially considering that the number of homosexuals in India is likely about the same as the entire population of a medium-sized European country.
posted by Your Time Machine Sucks at 3:41 AM on July 2

This is great news. The laws were rarely used, but the threat of conviction was a major factor in police harassment and blackmail of homosexuals. Also, it's always good for religious nationalists to be reminded that many of their hang-ups are rooted not in 'Indian Culture' but in the Victorian morals brought by British colonialism.
posted by embrangled at 3:56 AM on July 2 [5 favorites has favorites]

I find it weird that they quoted "India's Catholic Bishop Council" but there's been no noise from right-wing Hindus/Muslims etc

I don't have a link right now, but the news report I saw (in the Financial Times, I think) said that the reaction from Hindus, Muslims and Christians had been negative.

This is great news, though.
posted by Infinite Jest at 4:01 AM on July 2

My prediction: the habit in India (I know it happens elsewhere in Asia) of two men walking down the street holding hands begins its march to near extinction today.
posted by MuffinMan at 4:10 AM on July 2 [3 favorites has favorites]

Technically, the Delhi High Court did not rule Section 377 as unconstitutional; that section of the Indian Penal Code is still law. It merely said that Section 377 _does not apply_ for consenting adults. From the Indian Express:

"We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution," a Bench comprising Chief Justice A P Shah and Justice S Murlidhar said.

The High Court said 'the provision of section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non vaginal sex involving minors'.

The court clarified that "by adults we mean everyone who is 18 years of age or above".

It further said that this judgement will hold till Parliament chooses to amend the law.

"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.

A near-perfect ruling, as I see it. Does not change law, says that's the prerogative of the Legislature, but makes sure that the current law does not violate freedoms guaranteed by the Constitution.

(I hasten to add here that, like an estimated 90% of the Indian Penal Code, Section 377 has rarely seen convictions for sex between consenting adults. Which, of course, is not to negate the importance of this ruling; while there have been very few convictions in a court, negating the Section was crucial for two reasons:- 1) the local police to stop harrassing homosexuals for bribes, and 2) bring the community out of fear and into freedom.)

I find it weird that they quoted "India's Catholic Bishop Council" but there's been no noise from right-wing Hindus/Muslims etc.

The Deobandis and the All India Muslim Personal Law Board both oppose de-coupling sex between consenting adults from Section 377, and are threatening an inter-religious dialogue in opposing this. Legally speaking, they have no stance here; while India currently allows for personal (civil) law based on religion, Section 377 is criminal law. Criminal law does not have to take religious beliefs into consideration.

It'll be interesting to see responses from more liberal Muslim organizations; one of the truisms here in the LGBT fight so far is that you can take _no one_ for granted.

Consider the (right-wing) BJP's response for one:

The Opposition BJP also played safe saying the government need not have shown haste on the issue of repeal especially when the court is likely to pronounce its verdict soon on a petition seeking repeal on the grounds that it hampers the anti-AIDS drive.

A safe non-statement, but explicit in not taking a stance. Of course, in the days ahead, don't be surprised if RSS/VHP/etc come out with a statement opposing the ruling; as Non Prosequitor mentioned, they could be still smarting from their recent electoral defeat.

They were not alone in being influenced by the elections on this matter. Consider, for another, how the (liberal, left-of-center) Congress switched viewpoints within the span of a single re-election; the previous Government said this officially:

[I]n his written submissions on behalf of the Union of India filed after the court had reserved its judgment, Additional Solicitor General (ASG) P P Malhotra questioned the authority of the court to decide the matter. The court, the statements said, was “not the authority to decide what should be the law or what should not be the law”.
Rather, it was the job of the Parliament and the will of the Parliament was represented by MPs, he argued. He also claimed that if consenting adults were permitted to have “same-sex relations,” it would affect the health of other citizens exposed to the risk.

Completely disgusting and cringe-worthy? Confusingly enough, the Health ministry of that very government was also strongly in favour of repealing Section 377.

In fact, in the days leading up to the Delhi High Court's judgement, there seems to have been a concerted effort by the new government, with its (new) Home and Law ministers, in fixing the mess. They went slow only after the religious groups started opposing it, at which point, the Government started talking of an Obama-isque 'consensus' (which, as it is in the US, is code for "Someone threatened our asses, and because we're wimps and will do anything to protect our collective asses, together we'll go slow").

I've mentioned this before here on the Blue, but while ancient Hindu law does not have a specific provision for same-sex marriages, it doesn't specifically ban them either. Manusmriti and Agaama Shastras are all about dharma and about creating conditions for continuing dharma, a term that is often used in contemporary Indian languages to mean 'morality' or 'justice', but is often used in Sanskrit texts as an all-encompassing term to refer to civilization or even, a certain way of life.

The ideal Advaita has four goals in life, dharma, ardha (money), kama (eros) and moksha (deliverance from the cycle of birth and re-birth). The Epics are surprisingly open-minded about what constitutes eros; the Puranas have male characters who become pregnant, females reborn as males but with a recollection of their lives as females, male Gods who fall in love and conceive a child-god, Gods who switch genders to show how fickle lust is, how transient desire can be. Somewhere in that broad universe, surely there has always been some provision for same-sex love as well; it's not mentioned explicitly, but you just need to be human to know it can exist.
posted by the cydonian at 4:13 AM on July 2 [34 favorites has favorites]

for as long as I remember, his was the only voice willing to always speak out loud, so in this thread, he deserves an introductory link,

Ashok Row Kavi
posted by infini at 5:32 AM on July 2

Won't that take all the fun out of it?

Uh, no.
posted by Jaltcoh at 6:43 AM on July 2 [1 favorite has favorites]

The judicial system in India doesn't have the kind of presence or influence it has on cultural behavior as it does in the US. It's also a joke. The police will still harass homosexuals, there will still be corruption, and fundamentalist Hindus and Muslims will still think whatever they feel is right, and they won't be having a debate or discussion about it at all.
posted by anniecat at 7:01 AM on July 2

Wow, the cydonian, thanks for the well written and informative further explanation!
posted by lazaruslong at 7:14 AM on July 2

Won't that take all the fun out of it?

No, no silly, there's still the life-fullfilling joy of hiding it forever or facing condemnation from your ultra-conservative relatives and neighbors!
posted by Pollomacho at 7:22 AM on July 2 [4 favorites has favorites]

Excellent news—thanks for the post.
posted by languagehat at 7:36 AM on July 2

Is this India's Stonewall?

It's more like their Lawrence v Texas, but encouraging nonetheless.
posted by desuetude at 7:38 AM on July 2

The judicial system in India [is] a joke.

Not to flood this thread, but I just spent the last hour going through the actual ruling. Still haven't finished it as yet (it's 105 pages long; may finish it tomorrow on my flight home) but among the many things I've noted:

a) Section 377 has its roots in Elizabethan England.
b) It has, over the years, changed its focus from "the non-procreative to imitative to sexual perversity". Yup, Section 377 was used against oral and anal sex between two consenting adults of opposite genders.
c) The Health Ministry, which supported the legalization, estimates the population of "Men having sex with men" to be about 2,500,000 (which somehow seems small to me). 8% of this group is HIV-positive; overall stats for India is less than 1% (which is actually misleading; some states have rates as high as 5%)
d) I get the distinct sense that this ruling would not have happened without the net; gruesome cases that the Indian LGBT blogs talk about (Lucknow 2002, Bangalore 2004 etc), but ignored by mainstream media, all find a mention.
e) The Solicitor General had already mentioned to the Court that Section 377 was not being used against homosexuals, and so will not be removed. (This is the stance that my country of residence, Singapore, has also taken)

You'll have to read between the lines for this, but consider this for a moment: ultimately, this was actually a ministry-versus-ministry fight that spilled into the courts. The Health Ministry brief was exceedingly to the point: the country is facing an AIDS epidemic, Men Seeking Men (MSM) was a high-risk group, Section 377 was restricting its outreach programme unnecessarily, and therefore needs to be scrapped.

The court considered that, but then took on this breath-taking historical and geographical flourish; it's not just that the judges ruled against discrimination by sexual orientation into the right to privacy, but that they ultimately made a case for personal liberty and (unexpectedly for what I thought would be a dry text) human dignity.

I'm not a lawyer, I don't know how this ruling compares with other landmark rulings in India and elsewhere, but here's what it has done: it has taken atrocities that took place in urban India's hellish backlanes, placed it next to Article 19 of the Indian Constitution, Roe vs Wade from the US (for its argument for the right to privacy), Sexual Offences Act from UK and other judicial rulings / laws from Canada, Australia and other places, and firmly said: no can do. We cannot not only close our eyes to atrocities happening in front of us; it's against universal values that we all hold dear, it's against legal principles that we hold fundamental. Crucially for me, in working in international thought, it's also saying this: Indian law cannot exist isolated from developments happening elsewhere. Indian jurisprudence draws from, and will contribute to, a global set of universal values that remain constant everywhere.

I grew up in socialist India; for as far as I can remember, 'Made in India' was both a description of isolation and an explanation for shoddiness. We're like this only was where conversations started, on our inability to change things for the better, our frustration at managing with an overbearing state machinery. Not anymore; reading the ruling, I got this rising feeling that things could finally be different, that we can start applying global standards to governmental matters and start demanding answers.
posted by the cydonian at 7:59 AM on July 2 [20 favorites has favorites]

an interesting take on the manmohan singh govt's move from asia times that seems to imply a deeper political agenda,

New Law Minister Veerappa Moily, meanwhile, gave notice: "The next five years would be an era of judicial and legal reforms." He spoke of measures to radically trim the huge pendency of cases - new civil and criminal courts to fast-track a notoriously sluggish process, to deliver "affordable and accessible justice to the last man in the queue". He promised a systematic attempt to fight the creeping evil of corruption in higher judiciary - making it mandatory for judges to disclose assets, taking a more serious look at an impeachment law that has never ever been used.

Also on the anvil were laws to strengthen witness protection, a less severe attitude to allowing in foreign law firms. In the midst of gay pride rallies in three big cities, he even made a bold promise to reevaluate a law that still criminalizes homosexuality in India.

On Thursday, in a historic judgment, the Delhi High Court went ahead and struck down section 377 of the Indian Penal Code, decriminalizing homosexuality. This judgment is particularly surprising, given the revisionist thinking that followed the groundbreaking nature of some of such controversial pronouncements.

After Islamic and Christian groups expressed loud reservations, the law minister had to famously renege on his own casually offered pledge to amend Article 377, the law authored during Lord Macaulay's time that makes "unnatural sex" a punishable offence. It was hardly, if ever, used punitively on consensual homosexual activity, but gay rights activists have long wanted the "criminal" tag to go.
posted by infini at 8:59 AM on July 2

the cydonian, thanks for your great comments and adding such insight into the matter.

While I think this ruling is largely symbolic, it does have particular resonance for my country (Singapore). For more than a century we had a similar provision criminalising "carnal intercourse against the order of nature" in our Penal Code -- in fact, the Singapore Penal Code was birthed from the Indian Penal Code during the time of the Straits Settlements, courtesy of the British colonial government. Borne out of Victorian sexual norms, the provision continued to be justified through the years on the basis of Asian Values and societal conservatism. In practice, the law was enforced against same-sex acts only in situations of non-consent, but its very presence in the books was a major obstacle for the gay rights movement. There was, if I remember correctly, a judicial ruling in which the court said that the law would not be used for oral sex between consenting adults of the opposite sex, and only - ONLY! - if the oral sex led to sexual intercourse.

A couple of years ago, in the face of broad-based petitions for repeal, parliament removed the provision... but replaced it with one that specifically targeted gays. The new provision now prohibits acts of "gross indecency" between two males, such offence carrying a two-year jail term. Progress? Not so much.

Having skimmed through the actual ruling of the New Delhi High Court (thanks for the link, the cydonian), I do note that the court's opinion was grounded, at least in part, in respect for privacy of the individual. Sadly, there is no such right of privacy recognised in my country, so the principles may not be as applicable. It's hard to even say whether the Delhi ruling will have any impact beyond its state borders, much less whether it will effect any change outside the country.

It still is an inspiring development, and I hope to see more of the same.
posted by hellopanda at 9:11 AM on July 2

hellopanda, I remember the scandal when that gay rights activist dared to take on an MP on this matter a while ago. pity about that... does it all fall under "asian values" or "filial piety" ?
posted by infini at 9:32 AM on July 2

When the CNN breaking news twitter account published this, they used the hashtag #gaysex , which is probably a first for them... http://twitter.com/cnnbrk/status/2433168027
posted by jenkinsEar at 10:38 AM on July 2 [1 favorite has favorites]

Also, it's always good for religious nationalists to be reminded that many of their hang-ups are rooted not in 'Indian Culture' but in the Victorian morals brought by British colonialism.

Yes, I'm sure any Indian Islamic antipathy to homosexuality arrived with British colonialism.

My prediction: the habit in India (I know it happens elsewhere in Asia) of two men walking down the street holding hands begins its march to near extinction today.

Unfortunately this does appear to be a downside of legalisation of homosexuality - men uncomfortable with it then seek to purge society of anything that carries 'gay' connotations (ably assisted by queer scholars who attempt to recast any male closeness as indications of closeted homosexuality...).

Not worth criminalising a tenth of society over, though.
posted by rodgerd at 3:29 PM on July 2 [1 favorite has favorites]

Congratulations, India!
posted by five fresh fish at 5:12 PM on July 2

Mark my words, this will be the beginning of the end for India as a Christian nation.
posted by mattholomew at 7:34 PM on July 2