Law & Society

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.“The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone,” judges of the Delhi High Court wrote in a 105-page decision, India’s first to directly address rights for gay men and lesbians. “Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized,” the decision said.

In their decision, Chief Justice A. P. Shah and Justice S. Muralidhar declared Section 377, as it pertains to consensual sex among people above the age of 18, in violation of important parts of India’s Constitution. “Consensual sex amongst adults is legal, which includes even gay sex and sex among the same sexes,” they said.

The old law violates Article 14 of the Constitution, which guarantees all people “equality before the law;” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty,” the judges said.

Homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting “carnal intercourse against the order of nature with any man, woman or animal.” The law, known as Section 377 of India’s penal code, has long been viewed as an archaic holdover from colonialism by its detractors.

No sooner had the judgment been passed than all the religious groups in India started opposing it. While the law minister has said that the Congress-led government will study the judgment carefully, the main opposition party, the Hindu nationalist Bharatiya Janata party, is firmly opposed to it. Gay sex is immoral and unnatural and Indian society does not approve of it, they say. The usual pseudo-arguments invoking a nebulous notion of "Indian culture" also abound.

There is a very real worry that in order to appeal to the religious groups, and regional political parties, the government might choose to appeal the decision to the supreme court, though preliminary reports suggest otherwise. After all, only a few days ago, after initially conceding that it might consider scrapping the law, the home ministry backtracked the next day when the news made front-page headlines in national newspapers, triggering opposition from religious groups. Even if the government doesn't, religious groups and opposition parties have indicated that they will challenge the ruling.

What if that happens? It is quite possible, though unlikely, that the supreme court might overturn the current verdict. It is easy to forget that when the public-interest litigation was first filed eight years ago, the same Delhi high court rejected the plea twice, if only on legal technicalities. And the same court had ruled, only a decade ago, that society's disapproval was sufficient enough for the law to remain in force, an argument that was used by the previous Congress-led government.

I also worry that today's verdict might trigger a flurry of state legislations, and perhaps national ones too, that are blatantly anti-gay. For example, same-sex marriage and adoption may well be outlawed. In a country where 11 states have independently banned sex education in schools, it is very possible that acts similar to Section 28 in the UK might be enacted. Perhaps I am being overly pessimistic. But having grown up in conservative India where sexuality in general is a big taboo, and having been repeatedly told that homosexuality is abnormal and disgusting, I cannot help but wonder if things really have changed that much. It is easy, and comforting to believe so, but not necessarily true.

“The real problem is still the stigma attached,” especially outside big cities, said Ritu Dalmia, one of India’s best-known chefs, who lives with her girlfriend in New Delhi. Change particularly needs to happen in rural India, she said in an e-mail message Thursday afternoon. “I have met women who were forced to sleep with men so that they could be ‘cured’ of homosexuality,” she said.

“Today is a historical moment where at least some tiny steps have been taken, but there is still a very, very long road ahead,” she said.

Hoping that homosexuality remains legal for good, the most important task ahead is to educate the public and raise public awareness about sexual minorities. Sure, popular culture might help. But gay rights activists need the support of the national and state governments, which need to take a secular, long-term outlook, and invest the necessary resources. Unfortunately, where that kind of support is often considered political suicide, achieving equality will take a long time. Today's verdict is just the first step in the right direction.
Gay rights: not a Western export

The Evil West argument is pretty flimsy when it comes to homosexuality and gay rights in India. Here are a few reasons why:

1) Homosexuality has existed throughout human history, all across the world. It has nothing to do with East, West, North, South or any other arbitrary distinctions that we humans invent.

2) Western countries like to oppress homosexuals, too. The West has no shortage of Moral Police types, who spend their lives trying to dictate how others should live.

3) Non-Western countries have embraced gay rights. It would be easier for a gay couple to get married in Nepal right now than in most parts of the United States.

4) In India, it was the British who criminalized homosexuality, not the Indians.

5) Equality and basic human rights are not exclusively Western principles. Gays all over the world deserve to be treated with dignity and respect. As two of the world's most influential democracies, India and the United States have a unique responsibility to be role models for tolerance. We should be the first to extend equal protection and freedom to all citizens, not just the majority. Isn't that what our democratic ideals are all about?