Home / Home Page / Be happy and gay; historic high court judgement

New Delhi: Loud and colourful celebrations erupted outside the Delhi high court on Thursday after it announced its decision to read down section 377 of the penal code, effectively decriminalizing homosexuality.

“Tonight, I return to India as a free gay man, free from violence, stigma and discrimination," said founder of Humsafar and one of India’s most vocal gay rights activists Ashok Row Kavi, speaking to Mint from Bangkok where he was attending a UNAIDS conference.

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The ruling was widely welcomed as a critical first step in ensuring equal rights for sexual minorities. The 150-year-old law criminalized “carnal intercourse against the order of nature" which effectively criminalized same-sex relations between even consenting adults.

“This is a momentous judgement, although it is only the first step in an even longer battle," said Anjuli Gopalan, founder and executive director of Naz India, the organization at the forefront of seeking the repeal of section 377. However, as Tejal Shah, an artist and gay activist, pointed out, along with all the positive ramifications of the ruling, the visibility it generates could also leave members of the LGBT (lesbian, gay, bisexual, transgender) community vulnerable to hatred and aggression.

Some of it was apparent even at the press conference convened to celebrate the ruling, with one member of the gathering insisting that homosexuality had been established as a mental illness and arguing that if not for “normal" sex, the activists themselves would not exist.

The Catholic Secular Forum (CSF) said it would appeal the ruling. “If homosexuality can be allowed, why not porn, rape, incest, sodomy, oral sex, bestiality, child abuse, prostitution…?" it said in a statement.

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Opposition also came from the political front. “Parliament is above it (judiciary/the decision) and the nation and society which we live in is also above all this. One or two judges only cannot decide everything," said Murli Manohar Joshi, a former president of the Bharatiya Janata Party.

“The court has today tried to infringe upon the powers of the Parliament and this is also a gross violation of the social norms. We will take up the issue in the House after the budget is tabled," added prominent Muslim leader and member of Parliament Mahmood Madani.

The verdict, delivered by justices A.P. Shah and S. Murlidhar, stated that the section “was violative of Articles 21 (fundamental rights), 14 (equality) and 15 (prohibition of discrimination) of the Constitution".

Although the ruling technically applies only within the jurisdiction of Delhi, it sets a powerful precedent for rulings elsewhere in India.

“The fact that the verdict quoted Constitutional wellsprings such as Ambedkar and Nehru makes it a very strong document that will be hard to subvert," said Sumit Baudh, the nodal person for Voices against 377, an umbrella organization that came out in support of the Naz affidavit. The government has the prerogative to challenge the ruling if it so wishes, but has not announced a decision to do so thus far.

According to Gopalan, what is most important about the verdict is that the LGBT community will no longer be treated as criminals. What this effectively means, according to Ponni Arasu, a member of the Alternative Law Forum and a gay rights activist, is that members of the LGBT community now have the space to ask for all the civil rights that had been denied them for so long. “You now have the right to go to a police station and file a complaint if someone harasses you on the basis of your sexuality. Prior to this, we would have to go to great pains to hide sexual orientation if we had to go to a police station even to file a regular complaint," she said.

However, she stressed that there was still a long way to go, saying that the verdict should be looked at as a stepping stone to ensure other rights such as the right for homosexual couples to adopt children, hold joint bank accounts and pass on property to their partners.

But the judgement has also paved the way for what the original public interest litigation (PIL) set out to do in 2001—remove barriers in effective HIV/AIDS interventions with sexual minorities.

Naz Foundation, the petitioner, had been working in the field of HIV/AIDS intervention and prevention. It was this work that led it to file the PIL in 2001. This (work) necessarily involves interaction with such sections of society as are vulnerable to contracting HIV/AIDS and which include gay community or individuals described as “men having sex with men" (MSM) stated Naz Foundation in its petition.

“Even the HIV programme for MSMs will now be able to gather momentum and be carried out in an effective manner," said Loon Gangte, president of the Delhi Network of Positive People. “This judgement will bring an end to police harassment and no longer come in the way of our work."

Radhieka Pandeya and Santosh K. Joy contributed to this story.

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