A Victory for Gay Rights in India
In a landmark ruling 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?
