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World: India's gay-sex ban struck down
by Rex Wockner
2009-08-01

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Following an eight-year court battle, India's Delhi High Court legalized gay sex July 2 in a forceful and poetic ruling that had GLBT activists crying in the courtroom.

The ruling took effect immediately—nationally—and will remain in effect unless the Supreme Court reverses it. Several major Western media outlets erroneously reported July 2 that the ruling only applied in New Delhi.

The court decision "read down" Section 377 of the Indian Penal Code so that it no longer applies to the activities of consenting adults. The section bans "carnal intercourse against the order of nature with any man, woman or animal" under penalty of 10 years to life in prison.

The court smashed 377's application to gay people in myriad ways, finding it violated a constitutional guarantee of equality under the law, a constitutional ban on discrimination based on sex, and constitutional promises of personal liberty and protection of life.

The ruling is chock-full of soaring statements in support of India's GLBT population, including:

—"The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. ... Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private."

Read more story below....

—"Section 377 IPC targets the homosexual community as a class and is motivated by an animus towards this vulnerable class of people. ... It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity."

—"When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. ... The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself."

—"We hold that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15. ... A provision of law branding one section of people as criminal based wholly on the State's moral disapproval of that class goes counter to the equality guaranteed under Articles 14 and 15 under any standard of review."

—"' [ R ] ight to personal liberty' and 'right to equality' are fundamental human rights which belong to individuals simply by virtue of their humanity. ... A Bill of Rights does not 'confer' fundamental human rights. It confirms their existence and accords them protection."

—"Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual. ... We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution."

What happens next?

The national government could appeal the ruling to India's Supreme Court, though that is considered unlikely; the national government could both accept the ruling and use it as ammo to introduce a bill in Parliament to duplicate the ruling in national law; and/or anti-gay parties to the lawsuit could appeal to the Supreme Court.

But until such time as the Supreme Court overturns the Delhi ruling, India's GLBTs—who comprise more than 17 percent of all GLBT people on the planet—are no longer criminals. India has a population of nearly 1.2 billion people.

The erroneous reports that the ruling did not apply outside of New Delhi appeared in The New York Times, The Washington Post, the Los Angeles Times, on the Associated Press wire and elsewhere. ( For correct information, see bit.ly/WeXyO and bit.ly/7su4o. )

"Every major media outlet in the world got this wrong because they don't understand how the Indian courts work," said journalist Vikram Doctor of India's Queer Media Collective. "It will apply nationally until somebody challenges that at the Supreme Court, which is where this case is going to end up anyway."

In most common-law court systems, including India's in this case, the decision of an appellate court binds lower courts within its territorial jurisdiction and also is the 'last' word on the subject nationally unless a court of equal authority elsewhere makes a contrary decision or the supreme court reverses the decision. An appellate decision also binds the parties in the case ( which include the Indian government in this case ) regardless of where they are in the country.

Meanwhile, gay pride parades were staged in four Indian cities June 27-28—New Delhi, Bangalore, Chennai and Bhubaneshwar.

At least 2,000 people marched in New Delhi. Marches are still to come in Mumbai and Kolkata.

—Assistance: Bill Kelley


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