Finally, the law has changed. Congrats to at the activists in India that made it happen! Our hats off to you.
In a landmark ruling Thursday that could usher in an era of greater freedom for gay men and lesbians in India, New Delhi’s highest court decriminalized homosexuality.
“Discrimination is antithesis of equality,” the judges of the Delhi High Court wrote in a 105-page decision that is the first in India to directly guarantee rights for gay people. “It is the recognition of equality which will foster dignity of every individual,” the decision said.
Homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting “carnal intercourse against the order of nature.” [Link]
HUZZAH!!!
Here’s the decision: http://timesofindia.indiatimes.com/photo.cms?msid=4728348
I was quite shocked to know that such a law even existed. And even more shocked that the previous home minister, Shivraj Patil, was against this repeal, calling homosexuality “un-Indian”. Thats kind of like the crazy dude from Iran who said that there are no gays in Iran.
Congratulations to everyone who made this happen!
wow! this is amazing!
Yay! Celebrations and congratulations to the concerned community in India. The judiciary of India are (generally) more progressive than the Netas and their chamchas. This is a triumph for human rights….more of these archaic colonial laws should be overturned (this one was created in 1880s).
Cheers to the Naz Foundation for being so persistent with this case.
Incidentally, here are a few of the (numerous) earlier posts on SM related to Section 377:
link (Amardeep, 2008)
link (Amardeep, 2006)
link (Ennis, 2005)
Nice example of judicial activism. Where are India’s Clarence Thomas, Kennedy, Scalia, Alito and Roberts?
Good news!
I say, Old Bean, it’s against the order of Nature!
This is great news indeed, though I’m confused about the jurisdiction of the ruling. The NY Times article about this mentioned that the Central Government can still appeal the decision to the Indian Supreme Court (which is different from the “Delhi High Court” that issued the ruling). The Delhi High Court has jurisdiction over Delhi and Punjab, but it’s not clear to me why it can also rule on the Constitution as a whole for the country (are the High Courts similar to federal courts in the US?). If someone understands the power breakdown of Indian courts, please clarify. Otherwise, I don’t think this story is over until the Indian Supreme Court issues its own ruling.
Awesome. I’m very much for gay rights. Now, they need to legalize cow-slaughter and alcohol in Gujarat and Tamil Nadu, which is also a dry-state.
There were contradictions within the government as the Home Ministry had opposed scrapping of section 377 while Ministry of Health came out openly in support of the gay rights activists.
The government later sidelined the stand of the then Health Minister Anbumani Ramadoss and opposed the PIL by describing homosexuality as ‘the most indecent behaviour’ in society.
The Centre had submitted that gay sex is immoral and reflection of a perverse mind and its decriminalisation would lead to moral degradation of society.
The Centre had said that homosexuals comprise only 0.3 per cent of the population and the right of rest 99.7 per cent of the population to lead a decent and moral life in society would be violated if such behaviour (gay sex) is legalised.
Nice!!
The above are quotes from a Rediff.com news item on the story, BTW.
They’re probably too busy restricting economic freedom, their judicial restraint reinforcing the license raj and keeping hundreds of millions in a poverty that prema can describe until the cows come home.
So when are they going to repeal British era laws on criminalising ganja (pot/marijuana)? Not that it stops it’s consumption now, but it will stop petty harassment and bring in more revenue to the government.
That would be regressive though. What about animal rights?
@CondeKedar #9: The Delhi High Court did not make a ruling on the constitution – homosexuality was a crime under section 377 of the Indian Penal Code of 1860. You’re right, the Delhi High Court has jurisdiction only in Delhi and Punjab; I found a pretty concise analysis on Rex Wockner’s blog:
What did this Delhi High Court ruling do? It “read down” Section 377 — at minimum, within the National Capital Territory of India — so that Section 377 no longer applies to the activities of consenting adults.
What about the rest of India? It certainly carries weight there but is, at the moment, legally binding only in the National Capital Territory. What could happen next is that (A) the national government could appeal the ruling to India’s Supreme Court, (B) the national government could accept the ruling and not appeal it, (C) the national government could accept the ruling and use it as ammo to introduce a bill in Parliament to duplicate the ruling in national law, and/or (D) anti-gay parties to the lawsuit could appeal to the Supreme Court. Regardless, gay sex is now legal in India’s National Capital Territory.
@boston_mahesh: Are you sure about Tamilnadu being a dry state? I’ve been out drinking in Chennai on pretty much every visit there, so I’m kind of surprised to hear this.
Funny. Homosexuality was (and still is) illegal but open man-on-man public displays of affection are everywhere in India. I guess it’s like their marijuana laws. Illegal but not enforced.
awesome.
Question: what is more taboo in India now? Same-sex couples or interracial couples?
It is funny and sad at the same time –
The largely metro-centric ‘movement’ is primarily a TV phenomenon;I don’t see much interest about this issue in even Tier 2 cities, leave alone the country side.
The archaic law it self is funny because until the ‘movement’ highlighted Art 377, hardly any one was aware that homosexuality is illegal in India 🙂 Ok, the gay couples in Blr’s Cubbon Park are routinely harassed by beat constables, but a small bribe would always work.
-If, emboldened by this judgement, some gay couples come out in the open, they will surely be discriminated against, and if they protest, will be beaten up (Don’t cringe..its the reality).Yes, some gay activists can go to court about discrimination etc, but there will be always be a consideration of an individual’s right to protect his/her own sensitivities by not letting out an apartment to a gay couple, or not having to allow them to perform prayers in temples and churches.
-I think the judgement merely de-criminalizes homosexual sex, but does not confer property, marital or adoption rights.I don’t think gay couples will ever be allowed to legally adopt a child in India.Many people would see it as a crime against the child.
-We have not yet heard the last word on this one.The Mullahs and Bishops of India have not yet spoken.(The views of Hindu religious leaders don’t count any way in the Indian media, but I think they are neutral on this issue).
In short, I would advise my gay/lesbian friends in India not to count on the State or societal support just because they have been told that its not a crime to cohabit.(Such cohabitation has been happening since ages in India, away from public gaze).If the gay couples think they can now register as spouses, and claim legal rights, they will have a rude shock coming.I only hope the media doesn’t go around now looking for instances of atrocities on homosexuals.They will find a few incidents here and there, and if the media tom toms those, it will result in hounding of the gay couples. As I said, its sad, but its the reality.
Some priceless comments in this link.
http://news.rediff.com/interview/2009/jul/02/interview-homosexuality-goes-against-the-human-race.htm
It’s funny – India is just starting to acknowledge homosexuality, and and just starting the morality-versus-human rights bedate. I’d say we’re in about the same stage as America in the 50s. Or is it the 20s?
heh
Kumar, the main thing I got from your comments is that you blame Muslims and Christians and the Indian media a lot. Also that Hindus are not prejudiced and didn’t have anything to do with this. Is that part of the “reality” you want us to be aware of?
http://www.nytimes.com/2009/07/03/world/asia/03india.html?hp
Still, the decision was condemned from many corners in India. “This is wrong,” said Maulana Abdul Khaliq Madrasi, a vice chancellor of Dar ul-Uloom, the main university for Islamic education in India. The decision to bring Western culture to India, he said, will “corrupt Indian boys and girls.”
The High Court’s decision should be overturned, said Murli Manohar Joshi, the leader of the main opposition Hindu nationalist Bharatiya Janata Party. “The High Court cannot decide all things,” he said.
Father Dominic Immanuel, spokesperson of Catholic Church, strongly disapproving the decision, saying homosexual acts were unnatural and cannot be legalised. (link)
United in hate.
Re Boston_Mahesh,
Tamil Nadu is definitely not dry and I don’t think cow slaughter is banned there either.
This is wonderful! I think it might make it a bit easier for us gay Indians in the US to come out to our relatives in India. By the way if you live in the San Francisco Bay Area, this weekend there will be two speakers at the San Jose Convention Center who will be talking about gay rights in India. Their presentation is called called From Kolkata to Castro, and part of the 2009 North American Bengali Conference. Google it.
He said much more.
I’d trust him on this. After all, the catholic church is very well acquainted with paedophilia.
As for religious leaders flaying the judgment, I’d threaten to flay them in return but fear they might actually enjoy it.
The comments on the rediff article, as always, are a reliable source of insight.
Were you ever confused about this? This is the first time I am hearing somebody claim 377 was about marriage rights.
No, you are misquoting him. His lament is that the prejudices of Hindus are not respected. You see, gays don’t have any problems that a couple bribes won’t fix, so this judgment doesn’t do anything, and even if it id, it would be repealed because of those damn minorities, and that would be a damn shame, but this ruling doesn’t change anything, so what’s to be excited about? Seems clear enough to me.
PG, you confuse Asian and American norms of bromance.
I can only assume he is talking about the perennial lack of rains and the Cauvery problem.
Apparently, this law has a very interesting history. As I understand, 377 was the first export to a colony of what was till then a British law, and it traveled from there to many, many British colonies. India is also the first of these erstwhile colonies to repeal this relic.
Now, to work on ridding society of this, and many other Victorian taboos, which have been embraced by religious conservatives, who seek to turn back history without actually knowing it, as Age Old Indian Traditions.
America “acknowledged” homosexuality in the 20’s and 50’s????
India is not so far at all behind the US when it comes to this ruling. I think there are still some states in the US where “unnatural” sexual acts are still technically outlawed in the books. But it is not enforced, of course.
Downlow homosexual behaviour has been going on in India for a long time. Teen boy on teen boy lovin’ (and maybe girl on girl) is the (more or less) accepted sexual outlet where a hetero dating culture is not the norm. Just as long as its not talked about in front of elders or done in public view. Parents know it goes on. (they probably did the same in their youth, til they got married).
I agree with the commenter who said you can do just about anything you want in India as long as you grease palms when need be.
There has already been at least one open and public gay marriage performed by a Hindu priest in India. More are to come.
Wow, well-played. The US Supreme Court may not study or use precedents from anywhere else, but let’s assume the US political and judicial structure ought to be emulated everywhere else (including in a parliamentary democracy with a completely different system of checks and balances, an unusual constitutional history, and another procedure for appointing judges).
“Downlow homosexual behaviour has been going on in India for a long time. Teen boy on teen boy lovin’ (and maybe girl on girl) is the (more or less) accepted sexual outlet where a hetero dating culture is not the norm. Just as long as its not talked about in front of elders or done in public view. Parents know it goes on. (they probably did the same in their youth, til they got married).”
This is very interesting. I wonder how much some same-sex sexual behavior in India is the result of the deep separation of males and females during adolescence, even in schools. It’s maybe an outlet for some, not necessarily an expression of homosexuality (though I’m sure that many of these individuals are actually gay but will never admit it to themselves)?
Wrong, at least as it pertains to sodomy. cf. Lawrence v. Texas 2003.
PAFD, sorry, I was scrolling and I didn’t see your entire comment. Nonetheless, judicial activism has a very different context and connotation in desh.
I’m not Gay. I don’t approve of homosexuality. However as long as they do not harm anyone intentially, et cetra, Homosexuals have the same rights as any ethinic minority or indeed majority…So another sign that some aspects of India are joining the 20th Century.
I think all 19th Century laws need to be looked at again.
Yes, re Freedom of rights, this is Progress
FYI – In NYC, desi LGBTQ folks and their friends are gathering this evening to celebrate at… the Stonewall Inn.
31.
Nice !!
Boston Mahesh Tamil Nadu is def not a dry state.Where did you even get that from. ever heard of TASMAC ?
http://www.urbancookie.com/Life/Directory/bars.html
Kumar:
I think it has been addressed already, but the BJP, RSS, and other groups have spoken out against gay rights. Also, pretty sure their concerns are being catered to, especially in states like Gujarat. The dislike og homosexuality in Indian culture cannot be blamed on religious minorities, and the Hindu leaders are not issue neutral on this (by and large).
Also, to Ms. Vegan, I hope you were not intending to put animal rights on the same level as human rights. Regardless of your views on animal rights, surely we can agree that human rights are the more pressing concern? Maybe I am assuming too much, or misreading your comment.
And, finally, for those of you mentioning Scalia, Thomas, et al., this would not properly be considered an issue of judicial restraint (at least under the US definition), in US law. Judicial restraint does NOT mean never striking down a law. It merely means not usurping legislative prerogative absent a Constitutional limitation justifying your doing so. Of course, then you get into the whole how do you interpret what the document says thing. Point being, unless the Indian system works like the rather unique US set-up (modified common law with the Constitution as a bit of an anchor), any negative references to Scalia and Thomas and other judicial conservatives is just taking an unrelated opportunity to poopoo those you dont like.
dan savage has highlighted how critical greasing palms can be, whether one does it india or elsewhere.
Here’s the text of the judgment. Very sweeping text, and an excellent read. It could indeed have far-reaching implications, at least if the statements about universal dignity, the penumbra protections for privacy, and the supremacy of rights over morality taboos hold.
Tamil Nadu definitey dry, ever since they ran out of sweet vermouth
Dr. Babu Joseph – spokesperson for the Roman Catholic Church
He basically said, “No homosexual behavior shouldn’t be legalized, but let’s not teach kids that being gay is ok. If you’re already gay, well then, you shouldn’t go to jail for doing gay thing.” He also specifically said “being the gay”.
Can’t wait for that headline: “New Delhi’s highest court decriminalizes marijauna use”
i don’t know how representative the sample is, but the world values survey has a question about homosexuality. here are the % who said the practice is never justifiable
hindu – 66.3% muslim – 52%
upper class – 37.1% uppder middle class – 65.2% lower middle class – 70.7% working class – 57.8% lower class – 59.7%
looking at the regional representations and there’s a huge variation there. i’ll look someone else do further digging if so inclined. here, click online data analysis, and use the 2005 data set, select india.
so apparently, this does have very sweeping implications, apart from the obvious ones. from the text:
I wonder if a lot of people who claim that homosexuality is ‘against nature’ (a pet defense in India at least) feel that way about heterosexual oral sex as well.
I wonder if a lot of people who claim that homosexuality is ‘against nature’ (a pet defense in India at least) feel that way about heterosexual oral sex as well.
it’s a common defense in many places. the same question could be asked re: some catholics i’ve talked to who oppose contraception because sex is for procreation about sterile or post-menopausal couples. there are ways to wiggle around the “logic”, but legally in the USA these laws have been used selectively. i recall a controversy with the attorney general of georgia who defended the anti-sodomy laws against court challenges while a woman who he had an affair with outed him as an enthusiastic practicer of sodomy.
I’m so thrilled by this — finally. But I think that culturally, there is still a lot of work left to be done. A lot of people have to be educated and taught about the LGBTQ culture, which doesn’t conform to heteronormative standards. It’s strange, because as this is good news, it brings to light more pressing issues — the lack of sex ed, the lack of dialogue that exists culturally about queer culture throughout india, hate crimes and harrassment, and even sex workers’ rights.
But hey, baby steps.