Thursday, July 02, 2009

Full Text of judgment- pdf and Press articles about the 377 judgment

The New York Times

July 3, 2009

Indian Court Overturns Gay Sex Ban


NEW DELHI —In a landmark ruling Thursday that could usher in an era of greater freedom for gays and lesbians in India, New Delhi’s highest court decriminalized homosexuality.

“Discrimination is antithesis of equality,” Delhi High Court judges wrote in a 105-page decision that is the first in India to directly guarantee rights for gays and lesbians. “It is the recognition of equality which will foster dignity of every individual,” the decision said.

Homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting “carnal intercourse against the order of nature.”

The law, known as Section 377, has long been viewed as an archaic holdover from colonialism by its detractors. Gay men and women have rarely been prosecuted in modern times, but it has been used to harass, blackmail and jail marchers and participants in gatherings.

The ruling applies only to India’s capital city but it will force the national government to either appeal the decision to the Supreme Court or repeal the law nationwide, lawyers said.

In their decision, Chief Justice A. .P Shah and Justice S. Muralidhar declared Section 377, as it pertains to consensual sex among people above the age of 18, in violation of key parts of India’s Constitution.

The law violates Article 14, which guarantees all people “equality before the law;” Article 15, which prohibits discrimination “on grounds of religion, race, caste, sex or place of birth;” and Article 21, which guarantees “protection of life and personal liberty” they said.

The repeal comes after a broad campaign organized by gay rights activists, authors and celebrities, lawyers and AIDS awareness groups.

Indian court decriminalizes consensual gay sex

By MUNEEZA NAQVI – 53 minutes ago

NEW DELHI (AP) — A court passed a groundbreaking ruling Thursday decriminalizing homosexuality in the Indian capital, a decision that could bring more freedom for gays in this deeply conservative country.

The Delhi High Court ruled that treating consensual gay sex as a crime is a violation of fundamental rights protected by India's constitution. The ruling, the first of its kind in India, applies only in New Delhi.

"I'm so excited and I haven't been able to process the news yet," Anjali Gopalan, the executive director of the Naz Foundation (India) Trust, a sexual health organization that had filed the petition, told reporters.

"We've finally entered the 21st century."

But some religious leaders quickly criticized the ruling. "This Western culture cannot be permitted in our country," said Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow.

The court's verdict came more than eight years after the New Delhi-based foundation filed its petition — not unusually long in India's notoriously clogged court system. The verdict can be challenged in India's Supreme Court.

Sex between people of the same gender has been illegal in India since a British colonial era law that classified it as "against the order of nature." According to the law, gay sex is punishable by 10 years in prison. While actual criminal prosecutions are few, the law frequently has been used to harass people.

The law itself can only be amended by India's Parliament and gay rights activists have long campaigned for it to be changed. The government has remained vague about its position on the law, and Law Minister M. Veerappa Moily said he would examine the high court's order before commenting.

The court's verdict, however, should protect New Delhi's gay community from criminal charges and police harassment.

"This legal remnant of British colonialism has been used to deprive people of their basic rights for too long," Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch, said in a press statement. "This long-awaited decision testifies to the reach of democracy and rights in India."

While the ruling is not binding on courts in India's other states, Tripti Tandon, a lawyer for the Naz Foundation, said she hoped the ruling would have a "persuasive" affect.

"This is just the first step in a longer battle," Gopalan said.

Rights activists say the law, also popularly known as 377, or section 377 of the Indian Penal Code, sanctions discrimination and marginalizes the gay community. Health experts say the law discourages safe sex and has been a hurdle in fighting HIV and AIDS. Roughly 2.5 million Indians have HIV.

Homosexuality is slowly gaining acceptance in some parts of India, especially in its big cities. Many bars have gay nights, and some high-profile Bollywood films have dealt with gay issues.

Still, being gay remains deeply taboo, and a large number of homosexuals hide their sexual orientation from their friends and families.

Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.

"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.

In New Delhi, Rev. Babu Joseph, a spokesman of the Roman Catholic church, told New Delhi Television that while homosexuals should not be treated as criminals, "at the same time we cannot afford to endorse homosexual behavior as normal and socially acceptable."

Copyright © 2009 The Associated Press. All rights reserved.

ndian court rules gay sex legal

By Elizabeth Roche – 4 hours ago

NEW DELHI (AFP) — A top Indian court issued a landmark ruling on Thursday decriminalising gay sex between consenting adults, overturning colonial-era legislation that outlawed homosexuality.

The New Delhi High Court ruled that an existing statute prohibiting homosexual acts was discriminatory and therefore a violation of fundamental rights under the constitution.

"It cannot be forgotten that discrimination is the antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," the bench said in a 105-page judgement.

The statute in question is a British colonial-era law banning "carnal intercourse against the order of nature." Conviction carried a fine and maximum 10-year jail sentence.

Although prosecutions were rare, gay activists said police used the law to harass and intimidate members of their community.

The High Court ruling was made on a petition brought by the Naz Foundation, a gay advocacy group fighting for equal rights and AIDS awareness.

"This is a long-awaited and incredible judgement," said gay rights activist Gautam Bhan.

"The judges in their verdict spoke about inclusivity, equality and dignity. They spoke about a vision of India as an open, tolerant society and to hear all this from the Delhi High Court was amazing," Bhan said.

While the ruling is non-binding outside the Indian capital, lawyers supporting the petition said it set a precedent that effectively decriminalised consensual gay sex nationwide.

The petition had been staunchly opposed by religious groups, particularly leaders of India's Muslim and Christian communities who argued that all homosexual acts were "unnatural" and should therefore be banned.

"This is absolutely wrong," Ahmed Bukhari, imam at the Jama Masjid in Delhi, India's largest mosque, said of the ruling.

"We will not accept any such law," Bukhari said.

Father Babu Joseph, spokesman for the Catholic Bishops Conference of India, said the court's decision would make no difference to the Church's stand on gay sex.

"While respecting the judgement of the court, we still hold that homosexuality is not an acceptable behaviour in society," he said.

Gay sex has long been a taboo subject in conservative India, where many still regard homosexuality as an illness.

In recent years, however, the country's largely closeted homosexual community has raised its profile, organising gay pride marches in major cities such as New Delhi and Mumbai.

"I feel very proud to be an Indian today. This was a very just ruling," said openly gay fashion designer Wendell Rodericks.

The Indian government has offered mixed messages on the issue, with some ministers speaking out in favour of the petition, only to be contradicted by others in the cabinet.

"The government can't ignore this," Naz Foundation executive director Anjali Gopalan told reporters after the ruling was announced.

Law Minister Veerappa Moily declined to offer any immediate comment on Thursday's ruling, telling reporters at parliament that he needed to study the text properly.

The government has the right to appeal.

The petitioners at the High Court had received substantial overseas support, including from the United Nations, which argued that decriminalising homosexuality would help India combat the spread of HIV/AIDS.

India has an estimated 2.5 million people living with HIV.

New York-based Human Rights Watch welcomed the ruling, saying it was overdue.

"This legal remnant of British colonialism has been used to deprive people of their basic rights for too long," said Scott Long, director of the watchdog's Lesbian, Gay, Bisexual, and Transgender Rights Program.

"This long-awaited decision testifies to the reach of democracy and rights in India," Long said.

Bollywood actress and gay rights campaigner Celina Jaitley said the High Court ruling was historic.

"I'm overwhelmed," Jaitley told AFP in Mumbai.

"It's great not to be criminalised for being a human being and what you do in your bedroom," she added.

India court overturns ban on gay sex

NEW DELHI (Reuters) - An Indian court Thursday ruled gay sex was not a crime, a verdict that will bolster demands by gay and health groups that the government scrap a British colonial law which bans homosexual sex.

In a country where public hugging and kissing even among heterosexuals invites lewd remarks and sometimes beatings, gay sex has been a taboo, leaving the government unsure how conservative Indians would react if the law was repealed.

The Delhi High Court's ruling that homosexual sex among consenting adults is not a crime is expected to boost an increasingly vocal pro-gay lobby in India that says the British-era law was a violation of human rights.

The current law bans "sex against the order of nature," and is widely interpreted to mean homosexual sex in India.

Gay rights activists hailed the court verdict as historic and many supporters of homosexuality were seen celebrating with sweets and smearing each other with vermilion.

"We have finally entered into the 21st century," said Anjali Gopalan, leader of Naz Foundation, a leading health and gay rights lobby.

The ruling applies to all of India, but can be appealed at the Supreme Court.

Gay rights activists also argue the law, framed in 1861, was an impediment in fighting against HIV/AIDS because many homosexuals refuse to come out in the open fearing harassment by authorities.

"Consensual sex amongst adults is legal which includes even gay sex and sex among the same sexes," said a two-judge bench of the court. The verdict said the current law will apply in the event of sex without consent.

Petitions to change the 1861 law have so far been firmly rejected by the government but there has been some softening up on the stand in recent years, with officials saying the possibility of revoking the ban was being discussed.

Thursday's court verdict came after nine years of legal proceedings initiated by India's gay groups.

Under the current law, homosexual sex is punishable by up to 10 years in jail.

(Reporting by S. Venkatraman and Krittivas Mukherjee; Editing by Alistair Scrutton and Valerie Lee)

Religious leaders criticise ruling on gay sex

July 2nd, 2009 - 5:04 pm ICT by IANS Tell a Friend-

New Delhi, July 2 (IANS) Even as gay rights activists celebrated the Delhi High Court verdict Thursday that gay sex was not a crime, religious leaders criticised the rulling as an attempt “to impose Western culture on Indian society” and said homosexuality went against “the will of god”.
“This is a sad day for civilised society. It (the ruling) is not acceptable. They are playing with the future generations and civilised society,” said All India Muslim Personal Law Board’s Kamal Farooqi.

“Scrapping such a law is not justified. This is an attempt to impose Western culture on Indian society,” Maulana Abdul Khaleeq Madrasi, pro-vice chancellor of Darul Uloom - India’s biggest Islamic seminary - told IANS on phone.

In a historic judgment, the Delhi High Court de-criminalised homosexuality by striking down section 377 of the Indian Penal Code (IPC). It said that any sex between consenting adults should be legalised.

A bench of Chief Justice Ajit Prakash Shah and Justice S. Muralidhar said that if not amended, the section 377 would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

Section 377, a relic of the British Raj, relates to “unnatural offences” and says that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal should be punished”.

Religious heads were both shocked and angered by the judgement.

Gyani Gurbachan Singh, head priest of the Akal Takth - the highest temporal seat of the Sikh community - said: “We strongly oppose this high court decision. It is against the laws of the nature. We appeal to the Indian government to rethink the issue. We also appeal to the Sikh community to boycott this verdict as it is against the teachings of the Guru Granth Sahib.”

Ganesh Tripathi, a senior priest of Delhi Arya Samaj Mandir, said: “The Arya Samaj can never accept this. This cannot be applied to Hindu society or our beliefs.”

“Homosexual acts go against nature. This (judgement) is wrong and just because a small section of society wanted this, the court has overlooked the majority’s views,” he added.

“We have no objection or opposition to de-criminalisation of homosexuality because we never considered them criminals. However, we are also clear that we are against legalising it…because what they do is unnatural and against the design and will of God,” said Father Dominic Emmanuel.

An outraged Shahi Imam Ahmad Bukhari of the Jama Masjid told IANS: “This is such a dirty issue. I have decided that I will not even speak about it because if I do, it will be an insult to me and our belief. The government cannot dare to make this legal - when they do, we will react and talk then.”

HC judgment on gay sex 'progressive': Gay activists

2 Jul 2009, 1235 hrs IST, PTI

NEW DELHI: Gay activists and the NGO which fought eight-year-long legal battle for their rights on Thursday hailed the Delhi High Court verdict legalising homosexuality as "progressive".

"Now it seems we are in 21st century as the rights of homosexuals have been recognised by the high court.

"This is very progressive judgement which recognises the right to equality," Anjali Gopalan, founder of Naz foundation, the NGO, which filed the petition in Court, said.

The gay rights activists never sought total scrapping of the penal provisions and simply fought against exclusion of a section of society, she said.

"We cannot exclude a section of society just because of their homosexual nature. We never demanded repealing of Section 377 IPC. We simply sought that unnatural sexual acts between consenting adults be excluded from the purview of Section 377 of the IPC (provision prescribing maximum sentence upto life term for the homosexual act)," Gopalan said.

Mehak Sethi, advocate who represented the NGO, said, "We are excited that Section 377 vis-a-vis unnatural sex has been excluded from the purview of regressive penal provision."

She expressed relief that the high court retained the penal provisions with regard to child abuse.

In a pathbreaking judgment, the Delhi High Court today legalised gay sex among consenting adults holding that the law making it a criminal offence violates fundamental rights.

The moment the court pronounced the verdict, gay rights activists who flocked the courtroom since the morning embraced each other in joy and elation.

Nienke, a South African, could not hide her joy on the verdict while emerging out of the courtroom by saying that it is just "fantastic".

"You people (Indians) followed our South African law which is a bit ahead as it legalises gay marriages," she said.

Brian, a Chicago-based gay rights activist was also very happy over the turn of events on homosexuality.

"Being a democracy always helped in evolving laws on such issues. I am overjoyed as the court has appreciated the rights of homosexuals," he said.

Supreme Court lawyer and gay activist Aditya Bandhipadhyay said, "It opens for us opportunity to claim all civil rights denied to Lesbian Gays Bisexual and Transgender people for 160 years. It also shows very positively that our judiciary values and human rights are not swayed by miopic public reaction and the tyranny of the majority,"

Arif Jafar, gay rights activist and head of Naz foundation, Lucknow said, "I think it is a good news after a long time. The efforts of so many people have finally been rewarded. Cases of harassment and blackmailing by police will come down."

Delhi High Court legalizes homosexuality

2 Jul 2009, 1050 hrs IST, TIMESOFINDIA.COM

HI: In a historic judgement, the Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian

Gay rights legalized

Gay activists celebrate the high court ruling decriminalizing gay sex, in New Delhi. (AFP Photo)

More Pictures

Penal Code. ( Watch )

The Section 377 of the IPC as far as it criminalizes gay sex among consenting adults is violation of fundamental rights, said the high court. However, Section 377 of the Indian Penal Code which criminalizes homosexuality, will continue for non-consensual and non-vaginal sex.

Any kind of discrimination is anti-thesis of right to equality, said the court, while allowing plea of gay rights activists for decriminalization of homosexuality.

Our reporter Smriti Singh from the court sketched the rejoice of the LGBT community.

Soon after the judgement, the supporters of the LGBT rejoiced the moment of victory and called it as the "first step to a better future". “Great moment for us, we are hoping that the court will pass an order in our favor, we have kept our finger-across,” she further added.

It is amazing to see, how we have won the battle, said Shivangi Rai, counsel for the NAZ Foundation.

A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The court said that this judgement will hold till Parliament chooses to amend the law.

"In our view Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.

"It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," the bench said in its 105-page judgement.

Section 377, a law from the British Raj era, says homosexuality and "unnatural sex" is a criminal act.

While the home ministry wanted the petition to be dismissed, the health ministry supported its contention that section 377 criminalized homosexuality per se, it was obstructing the AIDS/HIV prevention efforts among high-risk groups. Whatever the outcome, this is the second time the Delhi high court will be pronouncing on Naz Foundation’s petition against section 377. In 2004, it dismissed the petition at the preliminary stage stating that “an academic challenge to the constitutionality of a legislative provision could not be entertained.” It further said that when no personal injury was caused to the petitioner by this provision, the petition could not be examined.

The foundation then approached the Supreme Court, which disapproved the manner in which the high court had disposed of the matter. SC observed that when there was a debate on this issue the world over, “where is the question of the petition being academic? We are not able to accept the approach of the high court that it is an academic exercise and there is no personal injury.” Accordingly, in 2006, SC directed HC to reconsider the matter in detail. The judgment is coming close on the heels of statements from ministers on the possibility of a legislative intervention because of growing demands from the community of lesbians, gays, bisexuals and transgenders (LGBT). If the judgment serves the purpose of decriminalizing homosexuality, the government will be spared the burden of amending a provision laden with religious and cultural sensitivities.

Interestingly, in the new team of law officers appointed by the government, at least two of them — attorney general Goolam Vahanvati and additional solicitor general Indira Jaising —- have publicly supported the demand for decriminalizing homosexuality.

QnA: What does the decriminalization of homesexuality by the Delhi HC mean for India?


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