INDIAN HIGH COURT: GAY SEX IS LEGAL
New Delhi Court De-criminalizes Consensual Homosexual Acts in a Ground-breaking and Controversial Ruling in the Conservative Indian Capital
June 30, 2009- New Delhi, India- In a ruling Thursday, the Delhi High Court overturned a 148-year-old colonial law criminalizing consensual homosexual acts saying that it was a violation of fundamental human rights protected under India’s Constitution.
In so holding, the court reasoned that “the criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery … A provision of law branding one section of people as criminal based wholly on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review.”
This ruling followed an eight year effort by the NAZ Foundation (India) Trust, a sexual health organization based in New Delhi, who filed the petition to change Section 377 in 2000, and the ongoing work of a number of LGBTI and human rights groups around the globe.
“I’m so excited and I haven’t been able to process the news yet,” said Anjali Gopalan, the executive director of the Naz Foundation (India) Trust. “We’ve finally entered the 21st century.”
Renato Sabbadini, Secretary General of ILGA, the International Lesbian, gay, Bisexual, Trans and Intersex Association, a network of more than 600 member organizations from every continent and representing 110 countries, commented:
“It is a historic verdict which affects one fifth of the world population and one of the biggest countries in the world. We praise our members in India for the steadfastness with which they fought this ten year long battle and join all LGBTI people in India in the celebrations of this great day. The verdict on 150-years-old Section 377 marks the end of State-sponsored homophobia in India as a colonial legacy of the British Empire and proves that homophobia, rather than homosexuality, is a Western import for those countries which had no homophobic laws of their own before colonization. We hope to see the example of India followed by all those countries whose laws against LGBTI people are the result of colonial rule and we hope one day to see India joining the signatories of the UN Statement for the universal decriminalization of homosexual acts delivered at the UN General Assembly on December 18, 2008.”
"I hope the victory will be spreading around the world and there will be no criminalization
for Sexual orientation anymore,” said Poedjiati Tan, Representative Female, Secretary General GAYa NUSANTARA.
Section 377, a vestige of the British Colonial Law, describes homosexual acts as “against the order of nature,” and prohibits both consensual and non-consensual acts. The ruling Thursday will effectively strike down the section of the law prohibiting consensual homosexual acts which were formerly punishable by up to 10 years in prison.
The decision will only protect the citizens of New Delhi and will not have a binding effect on other Indian states, although it is likely to have a persuasive effect on those territories, as well as other countries that still follow British Colonial Law.
This landmark ruling could mean the end of an era for LGBTI people living in New Delhi who, under Section 377, have faced prosecution and discrimination from law enforcement for almost 150 years. It is hoped to usher in an era where gay sex will no longer be taboo and the country can be more effective in its battle with HIV and AIDS.
Sahran Abeysundara, Male Representative ASIA, ILGA WORLD BOARD commented:
”What an amazing day for the LGBTIQ community of India and for the world.
After more than 120 years of a colonial law that criminalized and persecuted Gay men and women, today, the Queer people of India are now truly free to be themselves, to live freely, openly and proudly as Queer people.
I commend the hard work of the lawyers and activists who fought valiantly to make this historic decision a reality. I also commend the lawmakers in India for their courage, integrity and wisdom in their verdict which proves beyond any doubt the Indian Government's stance that all people are truly equal.
The decision made today by the Delhi High Court has a tremendous impact on many other nations who still have versions of the same penal code imposed on them by the British Colonialist. The power of this ruling today will ripple throughout the common wealth and call for change in Penal Codes across the Globe.
The Victory is not only for India but This Victory for all Asia who Sexual Orientation still criminalizes.”