Only now is it legal to be gay in India
Section 377 of the Indian Penal Code 1860, although drafted by Lord Macaulay, speaks with the coyness of Queen Victoria.
It states: “Unnatural Offences – Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life …”
A law directed against homosexual acts dared not use words like “buggery” or “sodomy”.
The euphemism of “carnal intercourse against the law of nature” was necessary and the Courts were required to fill in the missing spaces.
Over the years, the Courts of India confirmed that any form of sexual penetration other than vaginal intercourse between a man and a woman was “against the order of nature”.
On the second of this month, two judges of the High Court of Delhi declared that s.377 was unconstitutional.
The Chief Justice, Ajit Prakesh Shah, and Justice Muralidhar held that the law would now only apply to non-consensual acts and acts where a party to the act was younger than 18 years of age.
The Delhi High Court is permitted to hear cases involving questions concerning the Constitution.. Its decisions are appealable to the Supreme Court of India.
The case was brought by the Naz Foundation, an AIDS prevention NGO. While the government of India has not adopted a formal position on the decision, it is not expected to oppose the effect of the decision or launch an appeal to the Supreme Court.
The reasons of the Court noted that, while the Ministry of Home Affairs resisted the application by Naz Foundation, the Ministry of Health and Family Welfare provided evidence that s.377 hampered its AIDS prevention programs from being effective by driving at risk groups underground through fear of prosecution and persecution.
The decision was based on a number of constitutional protections of Fundamental Rights in the Indian Constitution including article 21 which provides that “No person shall be deprived of his life or personal liberty except according to procedure established by law”; the right to equality under article 14: “The State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India”; and the protections against non-discrimination in article 15: “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”.
The principal judgment was delivered by the Chief Justice. It drew upon earlier decisions of the Indian Courts as well as decisions on the right to privacy under the Bill of Rights from the United States of America and cases from South Africa; the United Kingdom; and Canada.
The decision of the Human Rights Committee of the United Nations of Toonen v State of Australia in which Nick Toonen’s complaint that Tasmania’s laws against sodomy were in breach of the International Convention on Civil and Political Rights was upheld is referred to by the Chief Justice, particularly, on the negative health impacts of laws criminalizing homosexual acts.
The judgment is particularly moving where it recounts some of the evidence of police brutality against AIDS workers and gay men that was placed before it.
In the Lucknow Incident of 2002, four health care workers were arrested and detained by police for 47 days because a breach of s.377 is a non-bailable offence.
In the Bangalore incident of 2004, a cross-dressing eunuch was gang raped (including oral and anal sex) by a group of hoodlums. It was no better when he was taken to a police station where he was stripped naked; handcuffed to a window; grossly abused and tortured because of his sexual identity.
Another incident recounted in the judgment involved a gay person taken from a bus stand by police officers who beat him with sticks and subjected him to degrading and abusive language. He was incarcerated in the police post overnight during which four police officers orally and anally raped him.
This evidence, while disturbing, has an air of familiarity. The reform of the law criminalising homosexual acts in Australia started with a conscience vote in the South Australian Parliament in 1975.
The momentum for this reform (which gradually spread to other States) was provided by public outrage at the unsolved murder of Dr. George Duncan, who met his death by drowning after unknown assailants, suspected by many to be police, threw him into the Torrens River in Adelaide.
Homosexuality is no longer a crime in Australia.
How will that affect the way in which this decision is incorporated into the current debate over a Human Rights Act for Australia? Will the decision be seen as indicating the way in which a Charter of Rights can protect minorities from the oppression of old-fashioned laws that no legislator has had the guts or time to remedy? Or will it be latched on to by some to argue that any kind of document which seeks to protect fundamental rights will result in the encouragement of yet more immorality?
That won’t worry the gay rights activists of India who will continue to celebrate quietly this significant victory in what has been a long and difficult struggle.
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