On 2 July, the Delhi High Court broke with nearly 150 years of legal precedent, reading down Section 377 of the Indian Penal Code which criminalized same-sex relations as ‘carnal intercourse against the order of nature’.

The Code was introduced by the British colonial government in 1860. ‘Its very language is an anachronism, and it has no place in contemporary India,’ says Anjali Gopalan, director of the Naz Foundation, the Delhi-based NGO which brought the case against Section 377 to court. The law had not been used to prosecute homosexual sex for decades, but it did allow – and even encouraged – harassment of sexual minorities in the country.

The Naz Foundation first filed a petition against Section 377 in 2001, arguing the law was making it more difficult to tackle HIV/AIDS and protect the general health of the lesbian, gay, bisexual and transsexual community. The case was thrown out two years later.

So Naz changed their strategy, and together with a coalition of other groups called ‘Voices Against 377’, argued that the law undermined the principles of inclusiveness and equality enshrined in the Indian Constitution. Mayur Suresh, one of the lawyers who prepared the case, recounts that they also compiled a grim list of cases of harassment, rape, torture and even suicide which they claimed were direct consequences of the law.

The Court agreed that criminalizing adults on the basis of consensual sexual acts in private violates the Constitution and ‘read down’ Section 377, redefining it so that such acts could no longer be considered illegal under this law. This creates a legal grey area which the Government must resolve either by legislating to uphold the ruling or by overturning it.

So far the Government seems cautiously supportive, but religious groups intend to lobby against the judgement, maintaining that homosexuality is against Indian culture and warning of ‘sexual anarchy’ if it becomes law. Some state governments have also voiced strong opposition.

The last two years have seen several landmark judicial rulings for the rights of sexual minorities in South Asia. In December 2007 the Supreme Court in Nepal ordered the Government to ensure equal rights for sexual minorities under the law. In November 2008 this direction was expanded to include the right to marry.

However, neither the Indian nor the Nepali Government has legislated on the matter yet. In India, the Government is due to present its stance on the ruling on 14 September but getting new laws through, either supporting or cancelling the judgement, is expected to take several years. Upholding the ruling would decriminalize gay sex for good but legal guarantees of equal rights and freedom from discrimination are still some way off.

Public opinion may also be slow to accept sexual minorities: four men were attacked at a party held outside Delhi to celebrate the judgement, in what appears to have been a homophobic incident. Says Suresh of the ruling: ‘It may not stop attacks on gay people but at least it should curb police harassment. It has also brought these issues into the open at last.’

Tom Owen-Smith

This article is from the September 2009 issue of New Internationalist.

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