India decriminalizes homosexual sex

Stephanie Nolen

New Delhi — Globe and Mail Update Last updated on Thursday, Jul. 02, 2009 07:43AM EDT

The New Delhi High Court struck down the law that criminalized consensual homosexual sex today, in a move that will radically change life for millions of gay, lesbian and transgender Indians and represents a huge shift for gay rights in the developing world.

In an unequivocal judgment, Justice S. Muralidhar invoked the country's first prime minister, Jawaharlal Nehru, and his belief in inclusiveness as laid out in the constitution.

“This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society,” the judge wrote. “Those perceived by the majority as deviants or ‘different' are not on that score excluded or ostracized. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination.”

The Indian government, which has been waffling in recent days between statements criticizing Section 377, as the law is known, and other comments saying any change would have to protect Indian culture, today said only that it will discuss the judgment.

Conservative religious groups were quick to criticize the ruling, saying homosexual behaviour violated the laws of all faiths and Indian cultural norms.

But such criticisms rolled off the backs of jubilant activists yesterday, who wept and embraced in the courtroom when the judge turned briskly to the end of the judgment and read out the key section, which made clear that consensual sex between people over 18 could no longer be prosecuted.

“The threat of exposure is enough to extort gay men for sex and money in India on a daily basis,” said Leslie Estefeves, a leader with a collective of activists called Voices Against 377, who shed anxious tears before the judge even began to speak.

“I hope people in India know not to let anyone get away with that any more.”

Tripti Tandon, a lawyer who brought the original challenge to the law on behalf of an AIDS organization called the Naz Foundation, said she hoped the government would recognize that the law is untenable, and not appeal. “If they do, it means a long, drawn out legal battle, but if they do we will be up for the fight,” she said.

The case has bounced between courts for more than eight years.

The law is a holdover from the British colonial administration, and it is similar to laws still on the books in many former colonies across the developing world. In India, it has rarely been used for prosecutions, but rather is a favourite tool of police who use it to threaten and extort gay men and transgender people in particular.

The judges refrained from entirely striking down the law because it is the only statute covering child abuse. Only the section covering adult behaviour was read down.