By JYOTI THOTTAM / NEW DELHI Thursday, Jul. 02, 2009
With one sweeping judgment Thursday, the Indian High Court decriminalized homosexuality, shook off a stubborn piece of colonial baggage and may have added momentum to a broader regional movement for gay rights. "This is a huge step forward," says Anjali Gopalan, director of the Naz Foundation India Trust, an advocacy group based in New Delhi that successfully brought a public interest petition to overturn India's anti-sodomy law, Section 377 of the Indian Penal Code. "We can now take the next step forward for the community in securing our rights."
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The law was enacted in 1860 by India's British rulers, but the most stubborn opposition to repealing it in India has come from those who argue that homosexuality goes against traditional Indian sensibilities. In July 2001, according to a report last year by Human Rights Watch, four HIV/AIDS outreach workers were arrested under Section 377 for distributing medical literature; a judge denied them bail, accusing them of "polluting the entire society." In 2003, the Indian Home Ministry — then under the Hindu nationalist Bharatiya Janata Party — argued that it "responded to the values and mores of the time in the Indian society." Maulana Khalid Rashid Firangi Mahli, a member of the All India Muslim Personal Law Board, said today's ruling was "against all religions. It is against the culture of Indian society."(See pictures of the gay-rights movement.)
The High Court soundly rejected that argument. "Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things Constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view," the court said in its ruling. Going even further, the court found that Section 377 went against the Indian tradition and guiding political principle of inclusiveness.
That sends a strong signal to Indian gay rights activists, who cheered not just the decision but the principle affirming homosexuals as part of Indian society. "It's the first judgment of its kind," says Siddharth Narrain, an attorney with the Alternative Law Forum in Bangalore. "It looks at the concept of inclusiveness, not just life and liberty."(Read: "The Battle Over Gay Marriage.")
Versions of Section 377 — often identified by the same three digits — exist throughout the former British colonies of Asia and Africa, and there is some hope among activists in the region that today's ruling will help efforts elsewhere. Nepal has already overturned the law, but as the largest country in South Asia, India's repeal effort has been watched especially closely. "We have had a very progressive leadership, and I sincerely hope that the Indian decision will help us in the right direction," says Sahran Abeysundera, a gay rights activist in Colombo, Sri Lanka's capital. As in India, Sri Lanka's law on homosexuality, known there as Section 365, has hindered HIV prevention programs among male sex workers. "We stand to gain more by repealing these laws than keeping them in the law books."
Shakhawat Hossain, moderator of Boys of Bangladesh, an online community that helps and supports gay Bangladeshis, says that India, because of its cultural and historic ties to Bangladesh, can influence the direction of the gay rights movement there. "This ruling certainly would boost up the work that is going on in here," Hossain says. "Most importantly it will pave the way for a discussion in the wider society and media here in Bangladesh."(See a video on gay marriage.)
But the case overturning India's Section 377 took years; activists elsewhere realize they have a long road ahead. "There will not be any immediate change here because of the Indian decision," Rosanna Flamer-Caldera, executive director of Equal Ground, a gay rights group in Sri Lanka. "Things don't work like that, we have to keep working and advocating constantly." The Indian High Court has given them one more rallying cry.
— With reporting by Amantha Perera / Colombo and Delwar Hussain / Dhaka
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