Delhi leads the way
Written by Ravi Lulla
Wednesday, 22 July 2009 11:52
Ravi Lulla reflects on the decriminalisation of same-sex acts in India.
July 2, 2009 was a milestone for the LGBT community in India. The High Court repealed Section 377, which criminalised non-procreative sexual acts, including sodomy and fellatio. This act was a British legacy introduced in 1860. It led to criminalizing same-sex behaviour –affecting basic human rights for sexual minorities in India.
In 2001, the NAZ Foundation India, an organisation that provides support to MSM groups, challenged Section 377 in Delhi High Court. The case was fought essentially on health grounds, health being a vital human right; that as the homosexual communities remained invisible, it was extremely difficult to reach out to them and provide health promotion services for HIV/AIDS. After eight long years of sustained effort, the court supported amending Section 377. The court now holds that if two people of sound mind and above the age of 18 have sex by consent in a private place they will not be guilty of an illegal act.
Kalpana Gaekwad from Lawyers Collective Mumbai explained that the High Court decision is currently applicable only in the state of Delhi. However, it has set a precedent for other states, and if someone is booked under 377, there is a chance that the person will be acquitted on grounds of the Delhi High Court judgment.
Ashok Row Kavi, a prominent gay rights activist and editor of the first gay magazine in India, felt that the High Court decision is similar to America’s Stonewall riots for LGBT people in India. There is a lot of emotional relief and joy from people within the community. He feels that people have tasted what it is like to live without fear and this will allow same-sex couples to establish relationships. For many LGBT people, this was not even considered previously – they were invisible. Row Kavi compares this milestone to the decriminalisation of sodomy in Hong Kong in 1991.
Along with Row Kavi, Vivek Anand is a director of Humsafar, a community based grassroots organisation addressing health and social concerns of LGBT communities in Mumbai. Anand is more cautious about the reforms and thinks that there is a long way to go. He hopes outreach workers in his organisation can circulate safe sex material and condoms without being subject to threats and violence and that the police will not harass men in beats and parks. Anand thinks that if the Supreme Court validates the High Court judgement, there will be a chance that during the winter session of Parliament changes could be made throughout India.
Ravi Lulla is the international counsellor at the University of Melbourne Counselling Service.
Extract from the Delhi High Court verdict
“If there is one constitutional tenet that can be said to be [the] underlying theme of Indian Constitution, it is that of ‘inclusiveness’. This Court believes that [the] Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracised.” – Chief Justice S. Muralidhar, J.
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