It’s okay to be gay — this was the banner headline with which the Hindustan Times hailed the Delhi High Court’s historic July 2, 2009 verdict that legalised homosexual acts between consenting adults by overturning a British colonial-era law finding it unconstitutional. But, in a throwback to a less tolerant era, the Supreme Court on Wednesday held that consensual sex between adults of the same gender was an offence. Terming the ban on gay sex constitutionally valid, a bench of justice GS Singhvi and justice SJ Mukhopadhaya left it to Parliament to repeal Section 377 of the Indian Penal Code.
The verdict, delivered on a bunch of petitions filed by various social and religious organisations challenging the high court verdict on the ground that gay sex is against the cultural and religious values of the country, is not in sync with the modern understanding of the subject. Does a 21st century India need an 1860 statute to punish homosexual citizens who have broken no other law except that of engaging in consensual same-sex relations? Moreover, who will define what is sexually acceptable or not? Even the SC Bench last year in February acknowledged that homosexuality was not an offence before the enactment of the Indian Penal Code in 1860. So to say that India traditionally had a non-intrusive and accommodating attitude towards homosexuality would not be off the mark. A report recently published by Australia’s Kaleidoscope Human Rights Foundation found that homosexuality is still illegal in almost 80% of Commonwealth states as compared to only 25% of countries outside of the grouping. This clearly suggests that anti-gay laws are a hangover from the British colonial rule. At a time when our Commonwealth brethren New Zealand and Australia have abolished this colonial law, one wonders what’s stopping India.
Though no one has been prosecuted under Article 377 that carries a punishment of up to 10 years in jail, the law is grossly misused by the police to harass and intimidate members of the lesbian, gay, bisexual and transgender (LGBT) community. We cannot lose sight of the fact that fear of persecution may leave the community feeling marginalised and send it into hiding. Importantly, this may deny LGBTs access to healthcare services, thus increasing the risk of sexually transmitted diseases. The implications of this ruling for those with HIV or those vulnerable to it are very grave.
{{/usCountry}}Though no one has been prosecuted under Article 377 that carries a punishment of up to 10 years in jail, the law is grossly misused by the police to harass and intimidate members of the lesbian, gay, bisexual and transgender (LGBT) community. We cannot lose sight of the fact that fear of persecution may leave the community feeling marginalised and send it into hiding. Importantly, this may deny LGBTs access to healthcare services, thus increasing the risk of sexually transmitted diseases. The implications of this ruling for those with HIV or those vulnerable to it are very grave.
{{/usCountry}}It’s time to realise that Indian society is not all that tolerant and does discriminate against individuals on the basis of their sexual orientation and now it is for the government to reinterpret human rights and make an effort to ensure protection and dignity to consenting adults engaging in gay sex in private. They must receive the dignity that they deserve.