Gay Rights in India — an Update

Nearly two years ago, we posted on a court case involving Section 377, India’s notorious law criminalizing homosexuality. A case had been filed in the Delhi High Court (in 2001!) by the Naz Foundation, and the High Court had initially turned down the case. Later, the Indian Supreme Court directed the Delhi High Court to consider the case after all.

Last week, the case finally came up for a hearing, and the proceedings are described here. The chief lawyer for the Naz Foundation, Anand Grover seemed to hit all the right points: the law is a colonial relic; the law is vague to the point of absurdity, opening itself to arbitrary interpretation and arrest of presumed homosexuals; the law insults the dignity of homosexuals; and the law runs counter to the interests of public health. All of these are strong arguments (read the article for the nitty-gritties, including a rather fine distinction made between “carnal intercourse” and “sexual intercourse”).

The government’s confused defense amused one of judges hearing the case, Justice Sikri:


blockquote>Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (“NACO”) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO’s reply is supportive of the Petitioner. To this, Justice Sikri remarked that if that is the Union’s position, then why did it not amend the law itself?

The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the petition but that its counter was filed in 2003 prior to NACO’s reply (in 2006). She admitted that the client (i.e the Ministry of Home Affairs) had not given any new or additional instructions. It therefore appears that the Ministry of Home Affairs stands by its earlier stand of contesting the petition.

Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked “It (homosexuality) is not a health hazard but is affecting the home”. (link)

In short, the government’s initial response (from the Ministry of Home Affairs) on Section 377 contradicts the National AIDS Control Organization’s response (the latter group actually agrees with the Naz Foundation). The government here can’t coordinate its own defense, making any attempt to actually defend the law seem a little schizophrenic.

56 thoughts on “Gay Rights in India — an Update

  1. 50 · jerry louis on November 17, 2008 09:39 AM · Direct link · “Quote”(?) I’m doing a paper on gay rights in India. Can any give any information?

    Not long ago there was a guest blogger here whose blog gave a picture of the topic in Pakistan, not India, perhaps that could lead you to more sources.. good luck with your research

  2. 32 · portmanteau said

    i’m pretty sure boarding school buggery is not unique to india. english boarding schools, for instance, have always been associated with it. and i doubt sexual harassment of younger students was encouraged even in that situation by the ‘elders,’ but i’m sure many thought it was part of the normal trajectory of growing up.

    In boarding schools it stems from the teasing of the better-looking ‘cute’ boys as being effeminate, which ultimately leads to them becoming targets for sexual experimentation. I suppose the same thing happens in male prisons.

  3. It is SO pathetic and SHAMEFUL of India and the way they view homosexuals.

    Centuries ago, it was written in the Vedas and scriptures that there were homosexual activities that were present in the country.

    Then, when the British came and ruled India and placed that STUPID Act of “Banning Homosexuality or any other ‘unnatural’ sexual acts”, India followed that rule. But ever since India has obtained freedom from Britain, WHY ARE THEY STILL FOLLOWING A RULE THAT WAS PLACED 150 YEARS AGO???

    I am starting to realize how hypocritical India is in their own beliefs. We are one of the MOST LIBERAL cultures out there, yet we don’t want to stand in our beliefs because of an act that was placed by ANOTHER country 150 years ago. And THAT country (Britain) NOW ALLOWS civil unions in their country!! Years ago, people were ignorant and were afraid to accept activities that might not have been the “majority” of activities!!

    So essentially, India has moved BACKWARDS in their thinking!! WHAT IS WRONG WITH THIS COUNTRY!!! It is so pathetic how we look up to western countries and how forward they are, while this country WAS WWAAAYY forward than any other countries CENTURIES ago!!!


    –Indian Lesbian Woman

  4. we need to have places/meetings / our representatives in the parliament etc , we are gays, and yes we choose to be the ones , it is natural when you live within a boys school/ in army , the gayism takes place, but why did human beings have boys hostels/ army etc if they totally want to remove the trend of gayism , it is inevitable and will keep on increasing till the time a balance is achieved or till the time gays are free like straight people to choose what they want to do . how they want to live their life . all gays welcome at basic drag

  5. our article 377 is very old , it is as old as our 1st war of independence…. i know today the youth is more liberal n more open minded than those people sitting in the parliament and making laws… being gay / lesbian might be a crime in their eyes, but 10 years imprisionment is very harsh n cruel….. i really oppose these kind of punishments….i think preference of a sex partener (male/female) is a very personal thing, so our law should not interfere in that….. but at the same time this is very unnatural, n quite unethical. …. so it should not be banned but at the same time should not be encouraged……

  6. Guys i don’t know what u r talking about in a country where kissing in public is offence,speaking against unlawful activities of police is a crime and speaking against politicians is the biggest crime while the politicians keeps earning money like they are in some flourishing business and other government officials are no different from this – this ban on homosexual activity doesn’t come as a surprise to me. When the law makers are bunch of hypocrats who know nothing but to copy the law from others book and politicians doesn’t have anything else to think but their vote bank – i am damn sure they are not going to change any damn thing about law!. I also heard few people accusing others like “if u r good why don’t u do it or do that” well i’m ready to stand an election but the question is are u ready to accept it and vote for me and change the face of politics? i don’t think so why don’t u shut the f*** up and write u r own opinion and not offend to what other say and accept the fact that nothing is going to change in india not in 1000years!!!