India Did Not Decriminalize Homosexuality – But Still Made A Big Step Forward

In a large gain for Indian gay rights, Delhi’s High Court has struck down Section 377 of the Indian Penal Code, bringing homosexuality one step closer to being accepted and giving lesbian, gay, bisexual and transgender (LGBT) people, as well as HIV prevention charities, hope that progress can be made in creating tolerance and also more stringent HIV awareness.

Contrary to some reports, homosexuality was never explicitly legislated against; Section 377 of the Indian Penal Code, an antiquated law left over from British Colonialism dating back to the 1860s, prohibited sexual activity deemed to be against the “natural order” which translated as, amongst other things, an anti-sodomy law similar to those that existed in the US until 2003 when the Supreme Court overturned them nationally in the case of Lawrence Vs. Texas. 

Indeed, the lack of institutionalized homophobia is an important point because it means that, now the impediment of Section 377 is removed in Delhi, the path to equality for LGBT citizens there could be swift and substantially easier than in most other countries, although there is a prevalent social stigma when it comes to being gay that exists throughout most of India. This is also based on the condition that the ruling not be overturned by the Supreme Court.

Such a move seems unlikely, however, as it was the Indian Supreme Court who insisted the Delhi High Court consider the case after the latter had originally dismissed a petition asserting that the law created substantial personal injury to homosexuals.

The case dates back all the way to 2001 when the petition, filed by a group called the Naz Foundation, who were asserting that the law was a needless impediment to AIDS/HIV prevention, was thrown out by the High Court who had problems with their interpretation of the law. After all, it didn’t ban homosexuality in name, although all were mindful that in banning all forms of sexual intercourse apart from vaginal sex between a man and a woman the law effectively stifled any form of sexual expression of homosexuality (though the law did apply equally to heterosexuals, its enforcement for both was patchy but often discriminatory).

The Supreme Court, who intervened on behalf of the Nas Foundation, ordered the High Court to perform an examination of the petition, which in turn called for an academic assessment of Section 377. Because India lacks the complexities of religious arguments against homosexuality in its law structure (there are some, but most scholars would argue Hindu texts are mostly neutral on the subject), and therefore has no basis to ban homosexuality as in Sharia law for instance, the examination went down to the constitutionality of Section 377.

There were some religious objections however from Muslim, Roman Catholic and Hindu leaders alike who argued mainly that homosexuality and homosexual acts were not part of Indian society and thusly should remain marginalized by Section 377, but these objections were deemed to be less than compelling.

In a process that has taken nearly six years (the examination itself began in 2004), it was found that the mandate of 377 violated Article 21 of the Indian Constitution because it contravened the assertion that all men are created equal before the law, or as the Article itself details:

“No person shall be deprived of his life or personal liberty except according to procedure established by law.”

Chief Justice A.P Shah said of the ruling: “We declare that Section 377 of the Indian Penal Code, in so far as it criminalizes consensual acts of others in private, runs counter to basic human rights guaranteed by articles of the Indian Constitution”.

A specific challenge could still be brought against the ruling in the Supreme Court, although it is unclear if any one religious institution would be willing to mount a legal case given the fact that should the Supreme Court apply similar process such as the Strict Scrutiny process of US law, there is the possibility that Section 377 could end up being struck down nationwide by one Supreme Court ruling.

It is also overstating this very marked step forward for gay rights in India to say that the law has a binding effect on all other Indian states. Indeed, as this Associated Press article documents, no other court will be forced to recognize the assertion of the Delhi High Court that a violation of Article 21 was made in keeping Section 377, however, because the ruling refers directly to the Indian Constitution for its decision, it will likely create precedent for other states to begin to examine Section 377 and its constitutionality as well. This ruling may also pave the way for a Supreme Court case into the legality of Section 377 which could, again, echo Lawrence Vs. Texas in the US and lead to a nationwide repeal.

It may seem a small thing, but this little bit of legal history could have huge ramifications for Indian society as it possibly legitamizes homosexual relationships in a way not seen to Indian culture before, and this striking down of Section 377 might well be the protean of change for India that finally allows LGBTs to come out of the shadows and perhaps even live equally and happily.
 


Photo used under the Creative Commons Attribution License, with thanks to Lighttripper.

31 comments

eddy t.
eddy t9 years ago

Please, people, focus!! This is not about religion as Christian religion, but the many sociological and cultural aspects that surround Indian culture and such advances, as this one, I guess, still a wee tiny step forward. However, all you americans who quote the Bible as a proper document, come on, if you had as much criticism as faith, you'll learn the Christian God is dead. He definitely died half a century ago, remember? Where is he, huh? Why is he letting all this happen? You know why? Cos there's no God for us westerners. We're on our own. Now we shall face it, and act as adults, not expecting or hoping a Good Fairy" to get us out of this crap. And plus, of course someone can misquote the Bible- is how it was built, or does anyone really think it was spoken by some God to his prophets?

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Marena Chen
Marena Chen9 years ago

I have read some disgusting comments on these gay sites - but Krishen K surely takes the Grand prix for the most disgusting one yet. What a depraved soul he has.

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Wendy L.

So what do you religious people say about the Bible talking about wearing cotton and wool at the same time as a sin? Just what are you going to do about that?! And does that make polyester a sin against God AS WELL as good taste?????
Get real, grow a brain as well as some common sense and true human compassion, and get off your high horses. Didn't I read somewhere that Jesus said that Love was more imporant? And love does not just mean sexual, and also what happened to 'Judge not'????

Wendy

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Bernardette Genovese

I am so tired of reading sermons handed down by santimonous twits. Keep God out of your perverse accusations. Do you really beleive anyone reading your contributions is in the least influenced ?
I can say one thing only, I have never read a contibution by a gay person insulting a straight one . I think that sums up the attitude of some of your contributors.
Why not do something useful with your life instead of interfering with the lives of people who SHOULD NOT have to fight for the rights others already have.
If your choice does not hurt human beings, so be it. Live and let live.

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Suzane K.
Suzane K9 years ago

This is a welcome step and i am sure slowly and slowly every country and every society will accept homosexuality. But there will always be a section of people or society who will consider homosexuality as Un natural and will appose it.

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Krishen K.
Past Member 9 years ago

Daniel L -

As Barbara Chally said re. you, please do not get "hot and bothered" - please think rationally and coolly about what you are saying.
According to you, it is the the "Holy Spirit" that flows as "living waters" from the belly of the male. A certain male authority figure declares, "If any man thirst, let him come unto me, and drink", and then from this male authority figure flow "living waters" into the drinking male, who then releases his own "living waters" ("out of his belly shall flow rivers of living water"). Now, you have declared your belief in this male authority figure. By your own logic, it follows that you have therefore drunk "living waters" that flow from this male's belly, and in turn released your living waters from your belly.
Have you?
You know, Daniel L, that July 5 post of Barbara Chally does make one wonder - "I know you said you weren't going to post in that thread any more, but is that because as long as there is discussion by and about gays other places you don't want to be left out? Do you think maybe the fellas in that other discussion were starting to question your obsession with that life style? When people tend to protest too much, it makes others wonder ..... and you wouldn't want that, would you? Maybe you should give your campaign about this a little more thought."

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Daniel L.
Daniel L9 years ago

Krishen K....Tell me this...what man that does not believe in Jesus...as the scriptures have said or otherwise cannot produce semen? I cannot believe I am even entertaining this conversation. This point alone dispells this debaucheric theory. The living water is the Holy Spirit...if you would have posted the verse following the 2 you used to make this absurd vile claim, everyone would have seen what the "living waters" were. That is why you chose not to....

John 7:37-39 (King James Version)

37In the last day, that great day of the feast, Jesus stood and cried, saying, If any man thirst, let him come unto me, and drink.

38He that believeth on me, as the scripture hath said, out of his belly shall flow rivers of living water.

39(But this spake he of the Spirit, which they that believe on him should receive: for the Holy Ghost was not yet given; because that Jesus was not yet glorified.)


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susan twentyeight
Past Member 9 years ago

28

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Krishen K.
Past Member 9 years ago

Daniel L -

John 7.37-38 - “If any man thirst, let him come unto me, and drink. He that believeth on me, as the scripture hath said, out of his belly shall flow rivers of living water.”

This is entirely in consonance with Jer 2.13 - "me the fountain of living waters" and John 4.14 - "of the water that I shall give him".

So, instead of abusing us, why not explain what this "living water" is that only the male produces "out of his belly"?

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Daniel L.
Daniel L9 years ago

Krishen K...that is the most perverse, twisted utterly godless abuse of scripture I have ever seen.
Jeremiah 2:13 (King James Version)

13 For my people have committed two evils; they have forsaken me the fountain of living waters, and hewed them out cisterns, broken cisterns, that can hold no water

John 4:14 (King James Version)

14But whosoever drinketh of the water that I shall give him shall never thirst; but the water that I shall give him shall be in him a well of water springing up into everlasting life.
Your perverse distorted view and putred repulsive twisted presentation of Holy Scripture, makes me want to throw up....The boldness and fearlessness of God Almighty in some members ot this site is alarming to say the least. One day all will be set right and the cocky arrogant disdain of the scoffers will be heard no more. Glory to God for His Holy and Pure Word. Praise to His Son Jesus Christ...Glory and Honor and Power and Might is Yours Forever and Ever.

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