Delhi court legalises gay sex

THE NEW Delhi high court yesterday overturned a 148-year-old colonial law that declared homosexuality to be a crime punishable by up to 10 years in jail.

The historic court ruling in response to a gay rights petition seeking to amend the statute, declared that treating consensual gay sex as a crime was a violation of fundamental rights protected by the Indian constitution.

The ruling partially mitigates section 377 of India’s criminal procedure code dating back to 1861 that classifies homosexuality as an “unnatural offence” and “sex against the order of nature”, equated to cohabiting with animals and paedophilia and carrying extended prison sentences.

Gay rights activists said the judgment would change the discourse on sexuality in a largely conservative country where even talking about sex is largely taboo.

“We have finally entered into the 21st century,” said Anjali Gopalan, leader of Naz Foundation, a leading health and gay rights lobby that filed the petition eight years ago.

The petition argued that the Victorian-era law had rendered gay people and organisations promoting Aids awareness vulnerable to frequent police harassment, and that many homosexuals in India had committed suicide because of the oppressive statute.

Ashok Row Kavi, editor of Dost (friend), India’s first gay magazine, welcomed the judgment, but said the stigma against homosexuals would persist. “It is still a long struggle, but the ruling will help in HIV prevention. Gay men can now visit doctors and talk about their problems. It will also help in preventing harassment at police stations,” Mr Kavi said.

Gay rights activists and supporters celebrated by distributing sweets outside the High Court and smearing each other with vermilion paste, considered auspicious in India.

In traditionalist India, senior government officials and politicians, including those from the ruling Congress Party, have taken extreme views on gay sex.

“Aids is already spreading in the country and if gay sex is legalised, then people would start indulging in such practices saying that the high court has approved it,” former additional solicitor general PP Malhotra said in response to this same petition last year.

According to UNAids, India has some 5.7 million people infected with HIV, the Aids virus, among the world’s highest, but activists maintain that gay sex is only marginally responsible for spreading the disease.

Former MP BP Singhal from India’s main opposition Hindu nationalist Bharatiya Janata Party believes homosexuality to be an “evil exported from the West”, a view similarly echoed by many other parliamentarians.

Meanwhile, Fr Dominic Emanuel of India’s Catholic bishop’s council reacted adversely, saying the church did not approve of homosexual behaviour as it did not consider it “natural, ethical or moral”.

The Kerala Catholic bishops conference in southern India went a step further by declaring that homosexuality was against Indian culture. “We will oppose it and since our country is a democratic one, there is no way that this can be legalised through legislation,” said spokesman Fr Stephen Alathara. “The church’s views will have to be sought.”