INDIA’S GAY DAY!!!

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[Source: Times of India News]

In Landmark Ruling, Delhi HC Says Homosexuality Not A Crime

New Delhi: India took a giant, albeit belated, step towards globalisation on Thursday when the Delhi high court delivered a historic judgment to amend a 149-year-old colonialera law—Section 377 of the IPC—and decriminalize private consensual sex between adults of the same gender. It is the biggest victory yet for gay rights and a major milestone in the country’s social evolution. India becomes the 127th country to take the guilt out of homosexuality.

In a judgment that has aroused strong reactions from religious and political groups, the court declared that Section 377, where it ‘‘criminalized consensual sexual acts of adults in private’’, violated the fundamental rights to personal liberty (Article 21 of the constitution) and equality (Article 14) and to prohibition of discrimination (Article 15).

A bench comprising Chief Justice A P Shah and Justice S Muralidhar clarified that the provisions of Section 377, enacted in 1860 to deal with an unspecified range of ‘‘unnatural offences’’, would hereafter be restricted to non-consensual penile ‘‘non-vaginal sex’’ (rape by a homosexual) and ‘‘penile non-vaginal sex involving minors’’ (paedophilia).

In a courtroom tense with anticipation, the bench invoked Jawaharlal Nehru’s stirring words to the Constituent Assembly, linking the issue of homosexuality with the politically resonant theme of inclusiveness. ‘‘If there is one constitutional tenet that can be said to be (the) underlying theme of the Indian constitution, it is that of inclusiveness.’’ As a corollary, it added that ‘‘those perceived by the majority as ‘deviants’ or ‘different’ are not... excluded or ostracized’’.

Upholding the petition filed by Naz Foundation, the court ruled, ‘‘Indian constitutional law
does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbians, gays, bisexuals and transgenders) are. It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.’’

‘‘There is almost unanimous medical and psychiatric opinion that homosexuality is not a disease or a disorder and is just another expression of human sexuality,’’ the court said.

While stating that its reinterpretation of Section 377 would hold until parliament amends the law, the court commended the Law Commission’s 172nd report which, it said, ‘‘removes a great deal of confusion’’. The Law Commission has suggested the repeal of Section 377 while redefining rape to include sexual offences of nonconsensual sex between adults of the same sex and pedophilia.

The verdict triggered protests from religious leaders across the spectrum who invoked the ‘‘will of God’’ to claim it would lead to the ‘‘ruination’’ of society and family values. Social workers and psychologists welcomed the order, calling it ‘‘scientific and humane’’.

Political parties were divided. The CPM welcomed the judgment, while the Samajwadi Party said it was totally opposed to it. Both the Congress and the BJP said they would have to study the order first. BJP leaders like Murli Manohar Joshi though came out in opposition, indicating an emerging left-right divide on the issue.


150-YEAR-OLD LAW ENACTED BY BRITISH OVERTURNED
“...377 denies a gay person the right to full personhood which is implicit in notion of life... A law branding one section of people as criminal based wholly on state’s moral approval of that class runs counter to equality guaranteed in constitution” —Delhi HC
Like It Or Not
Religious leaders across the spectrum —Hindu, Muslim, Christian, Sikh—invoked “will of God” to oppose ruling
Political parties divided on ruling. Left welcomes it, SP’s against it. Cong & BJP play for time, say they need to study the order

What is Section 377?
Section 377 of Indian Penal Code imposes a maximum penalty of life sentence on anybody who has “carnal intercourse against the order of nature” with any man, woman or animal

What has Delhi HC done?
Delhi HC read down this wide-ranging provision to decriminalize homosexuality. “We declare that Section 377 IPC, insofar as it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the constitution.” Article 21 deals with personal liberty, 14 with right to equality, and 15 the right against discrimination (on grounds of sex)

Has 377 been struck down?
No, it hasn’t. The court has clarified that 377 will continue to govern “nonconsensual penile non-vaginal sex (rape of a homosexual) and penile non-vaginal sex involving minors (paedophilia)”. By implication, oral and anal sex between consenting adults (male-female or same sex) has also been decriminalized

Why are gays celebrating?
Since there are hardly any instances of Section 377 being used against consensual sex between adults, the main benefit of the judgment for homosexuals is psychological as it reduces scope for their harassment. It may also over time reduce the social stigma

What’s HC’s reco to govt? Verdict calls upon parliament to repeal Section 377. It suggests that parts of the section that deal with sexual offences such as ‘‘non-consensual sodomy’’ and paedophilia be transferred to the IPC sections dealing with rape (375 and 376)

What will govt do now? Secretly relieved as HC has spared it a politically difficult decision. Unlikely to appeal unless forced to. If someone else goes in appeal, govt will be called upon to take a stand. Which way will it go then? A number of key ministers are said to favour decriminalisation. Govt has the option to amend the law as suggested by the HC. Interestingly, although the govt—represented by the home ministry in consultation with the law ministry — opposed Naz’s PIL, the National Aids Control Organisation (NACO), which comes under the health ministry, took Naz’s sid