New Delhi Decriminalizes Gay Sex, Rest of India Will Have to Wait

A BUZZFLASH NEWS ANALYSIS
by Alyssa Morin

In a landmark decision that promises new rights to the gay, lesbian, and transgender populations of India, the Delhi High Court ruled today to abolish a 150-year-old law criminalizing homosexual sex.

The law in question was Indian Penal Code Section 377, a leftover from British colonial rule that deemed sexual acts between members of the same sex "against the order of nature." The high court today determined that criminalizing sex that occurs between consenting adults in private violates the Constitution in the areas of equality, privacy, and protection against discrimination.

While Section 377 has rarely been used to prosecute homosexuals in modern times, it was often used as a tool for blackmailing and intimidating those considered "sexual deviants." The law also provided legitimacy to the social stigma against homosexuality and impeded efforts to prevent the spread of HIV in India, where over 2.5 million are thought to be infected by the virus. It was this latter concern, in particular, that led the Naz Foundation, an NGO focusing on HIV/AIDS awareness, to take up the suit to amend Section 377 in 2001.

That year four Naz workers were arrested in Lucknow, a northern city in India, for distributing educational materials about the prevention of AIDS. The government deemed the literature "obscene" and charged the men with "conspiracy to commit sodomy" under Section 377. The Naz foundation responded by filing a petition to decriminalize consensual gay sex amongst adults and the high court has been deliberating since.

"India has one of the world’s largest populations of people with AIDS, and Section 377 was viewed by many advocates as a hurdle to education about safer sex," explained Anjali Gopalan, head of the Naz Foundation. As AIDS activist and UNAIDS director Michel Sidibé described, "Oppressive laws such as Section 377 drive people underground making it much harder to reach them with HIV prevention, treatment and care services."

The ruling today only impacts New Delhi and it would take further action to decriminalize homosexual sex throughout all of India. While today's decision may provide the momentum needed for an effort of this sort, it may also result in an appeal of the decision by the central government to the Supreme Court. Some influential outspoken critics of the decision make an appeal all the more likely.

Many of India's religious figures have come out against the ruling, with Hindu, Muslim, and Christian leaders alike condemning the decision as an infiltration of Western morals on Indian culture. The irony in this argument is that it was British colonial rule that imposed these homophobic laws in the first place. In fact, pre-Colonial India was remarkably tolerant of homosexuality, a fact that Manvendra Singh Gohil, the prince of Rajpipla, reminded a crowd of gay rights protestors in Mumbai last year: "The idea of treating homosexuals as criminals was imposed on the more tolerant traditions of India and the Union government must abandon this abhorrent alien legacy of the [British] Raj."

A BUZZFLASH NEWS ANALYSIS

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