Thursday, July 02, 2009, NEW DELHI: The Delhi High Court on Thursday decriminalized homosexuality by reading down section 377 of the Indian Penal Code.
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.
The court said that this judgment would hold till Parliament chooses to amend the law.
Snapshots of the Rainbow rise in Bangalore , Delhi and Chennai.....
If the government musters courage to decriminalize homosexuality, or if the Delhi high court effects such a change on the petition challenging Section 377 IPC, India will shed the dubious honor of being among the 10 countries that can impose life sentence for gay sex. This category of homophobic countries includes Pakistan, Uganda, Tanzania and Sierra Leone—not exactly the kind of company that a liberal democracy wants to keep. It can’t draw comfort from the fact that there is a category of eight countries that are even more illiberal as they impose capital punishment for the same offence, which is variously described as “unnatural offence”, “buggery”, “sodomy” or “serious indecency”. Not surprisingly, those that put their homosexuals to death are essentially hard line Islamic countries: Saudi Arabia, Iran, UAE, Yemen, Afghanistan, Sudan, Mauritania and parts of Nigeria. India would do well to be conscious of the big picture, which shows that more than half the countries in the world have by now decriminalized homosexuality and that it is among the 85 countries that have clung to the archaic ban, accompanied by various degrees of penalty. Its great rival, China, has left India behind in breaching this cultural barrier. For all its draconian laws, China lifted its ban on gay sex in 1997. In the much touted combine of BRIC nations, India is the only one that punishes homosexuality as, besides China, Brazil and Russia too have long crossed the Rubicon. The situation is no less embarrassing in its south Asian neighborhood. For, Nepal, despite all its political turmoil, turned gay-friendly in December 2007 when its Supreme Court ordered its government to scrap laws that discriminate against homosexuals. It’s a precedent worthy of being followed by the Delhi high court should the Man Mohan Singh government fail to take the initiative. India could also draw inspiration from the activism displayed by the Obama administration in March in reversing its predecessor’s decision to withhold US support to a UN General Assembly declaration calling for decriminalization of homosexuality. Thus, US joined 66 other countries which had supported the declaration in December 2008 condemning human rights violations based on sexual orientation and gender identity. Though all the states of US legalized homosexuality by 2003, the outgoing Bush administration refused to sign the declaration in December citing concerns that it would encroach on the autonomy of states to legislate on matters involving discrimination. On reviewing the policy, the Obama administration concluded that the declaration did not create any new legal obligations for US and would therefore have no effect on the existing laws in its states. India is out of sync with the worldwide trend of homosexuality being legalized in developing countries as well. Look at the some of the examples: Vietnam, Philippines, Thailand and Kazakhstan in Asia, South Africa, Chad, Congo and Madagascar in Africa, Peru, Chile, Columbia and Bolivia in South America. The 27-nation EU has been in the vanguard of the movement to recognize the rights of LGBT (lesbians, gays, bisexuals and transgender). France has the distinction of legalizing homosexuality way back in 1791, as a sequel to its famous revolution. Its neighbor, England, lifted the ban much later in 1967. In the four decades that have lapsed since then, India has however shown little signs of doing away with the colonial relic of Section 377 IPC. Homophobic nations include Pak, Uganda, Tanzania and Sierra Leone Those which order death for homosexuals are hard line Islamic nations like Saudi Arabia, Iran, UAE, Yemen, Afghanistan, Sudan, Mauritania and parts of Nigeria India only one out of the BRIC group (Brazil, Russia, India and China) to punish homosexuality Even Nepal, ravaged by political turmoil, turned gay-friendly in December 2007. Even nations like Vietnam, Philippines, Thailand & Kazakhstan in Asia, Chad, Congo & Madagascar in Africa, Peru, Chile, and Columbia & Bolivia in S America have legalized homosexuality.
Was Indian society tolerant of homosexuality before the colonial administration proscribed it in 1860? The government has taken conflicting positions on this within the country and outside. On a petition pending before the Delhi high court seeking to decriminalize homosexuality, the government said in its counter affidavit that that there were “no convincing reports to indicate that homosexuality or other offences against the order of nature mentioned in Section 377 IPC were acceptable in the Indian society prior to colonial rule.” But when it was being reviewed by the UN Human Rights Council last year for the first time ever, India distanced itself from that provision when Sweden, arguably the most gay-friendly country in the world, questioned its record in ensuring equality irrespective of a person’s sexual orientation. This is how Goolam Vahanvati, who was then solicitor-general and is now attorney-general, tried to save India’s face before the council as part of its official delegation. “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. “As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature’. Now in India we didn’t have this concept of something being ‘against the order of nature’. It was essentially a Western concept, which has remained over the years. Now homosexuality as such is not defined in the IPC, and it will be a matter of great argument whether it is ‘against the order of nature’.” Vahanvati’s admission on the international forum that the ban on homosexuality was a western import and its relevance was debatable flies in the face of the government’s unabashed efforts before the Delhi high court to retain Section 377, complete with its colonial baggage and archaic notion of unnatural offences. Whatever the politics behind this glaring contradiction, there is ample evidence placed before the high court by petitioner Naz Foundation substantiating in effect Vahanvati’s view that in the centuries prior to the enactment of section 377, India was rather accommodating of homosexuals. While the penalty imposed by Section 377 goes up to life sentence, there is nothing close to it in Manusmriti, the most popular Hindu law book of medieval and ancient India. “If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘painful heating’ vow.” Thus, this peculiar vow, involving application of cow’s urine and dung, was meant not only for homosexuals but also errant heterosexuals. The penalty is even milder if the homosexual belongs to an upper caste. As Manusmriti puts it, “If a twice-born man unites sexually with a man or a woman in a cart pulled by a cow, or in water, or by day, he should bathe with his clothes on." Since Manusmriti was written at a time when bath generally meant taking a dip in a river or a lake with other members of the same gender, the penalty of making a homosexual bathe without taking off his clothes was probably designed to avoid the embarrassment of his being sexually aroused in public. In another indicator of the liberal Hindu heritage, Kama Sutra, a classic written in the first millennium by Sage Vatsyayana, devotes a whole chapter to homosexual sex saying “it is to be engaged in and enjoyed for its own sake as one of the arts.” Besides providing a detailed description of oral sex between men, Kama Sutra categorizes men who desire other men as “third nature” and refers to long-term unions between men.
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.
The court said that this judgment would hold till Parliament chooses to amend the law.
Snapshots of the Rainbow rise in Bangalore , Delhi and Chennai.....
If the government musters courage to decriminalize homosexuality, or if the Delhi high court effects such a change on the petition challenging Section 377 IPC, India will shed the dubious honor of being among the 10 countries that can impose life sentence for gay sex. This category of homophobic countries includes Pakistan, Uganda, Tanzania and Sierra Leone—not exactly the kind of company that a liberal democracy wants to keep. It can’t draw comfort from the fact that there is a category of eight countries that are even more illiberal as they impose capital punishment for the same offence, which is variously described as “unnatural offence”, “buggery”, “sodomy” or “serious indecency”. Not surprisingly, those that put their homosexuals to death are essentially hard line Islamic countries: Saudi Arabia, Iran, UAE, Yemen, Afghanistan, Sudan, Mauritania and parts of Nigeria. India would do well to be conscious of the big picture, which shows that more than half the countries in the world have by now decriminalized homosexuality and that it is among the 85 countries that have clung to the archaic ban, accompanied by various degrees of penalty. Its great rival, China, has left India behind in breaching this cultural barrier. For all its draconian laws, China lifted its ban on gay sex in 1997. In the much touted combine of BRIC nations, India is the only one that punishes homosexuality as, besides China, Brazil and Russia too have long crossed the Rubicon. The situation is no less embarrassing in its south Asian neighborhood. For, Nepal, despite all its political turmoil, turned gay-friendly in December 2007 when its Supreme Court ordered its government to scrap laws that discriminate against homosexuals. It’s a precedent worthy of being followed by the Delhi high court should the Man Mohan Singh government fail to take the initiative. India could also draw inspiration from the activism displayed by the Obama administration in March in reversing its predecessor’s decision to withhold US support to a UN General Assembly declaration calling for decriminalization of homosexuality. Thus, US joined 66 other countries which had supported the declaration in December 2008 condemning human rights violations based on sexual orientation and gender identity. Though all the states of US legalized homosexuality by 2003, the outgoing Bush administration refused to sign the declaration in December citing concerns that it would encroach on the autonomy of states to legislate on matters involving discrimination. On reviewing the policy, the Obama administration concluded that the declaration did not create any new legal obligations for US and would therefore have no effect on the existing laws in its states. India is out of sync with the worldwide trend of homosexuality being legalized in developing countries as well. Look at the some of the examples: Vietnam, Philippines, Thailand and Kazakhstan in Asia, South Africa, Chad, Congo and Madagascar in Africa, Peru, Chile, Columbia and Bolivia in South America. The 27-nation EU has been in the vanguard of the movement to recognize the rights of LGBT (lesbians, gays, bisexuals and transgender). France has the distinction of legalizing homosexuality way back in 1791, as a sequel to its famous revolution. Its neighbor, England, lifted the ban much later in 1967. In the four decades that have lapsed since then, India has however shown little signs of doing away with the colonial relic of Section 377 IPC. Homophobic nations include Pak, Uganda, Tanzania and Sierra Leone Those which order death for homosexuals are hard line Islamic nations like Saudi Arabia, Iran, UAE, Yemen, Afghanistan, Sudan, Mauritania and parts of Nigeria India only one out of the BRIC group (Brazil, Russia, India and China) to punish homosexuality Even Nepal, ravaged by political turmoil, turned gay-friendly in December 2007. Even nations like Vietnam, Philippines, Thailand & Kazakhstan in Asia, Chad, Congo & Madagascar in Africa, Peru, Chile, and Columbia & Bolivia in S America have legalized homosexuality.
Was Indian society tolerant of homosexuality before the colonial administration proscribed it in 1860? The government has taken conflicting positions on this within the country and outside. On a petition pending before the Delhi high court seeking to decriminalize homosexuality, the government said in its counter affidavit that that there were “no convincing reports to indicate that homosexuality or other offences against the order of nature mentioned in Section 377 IPC were acceptable in the Indian society prior to colonial rule.” But when it was being reviewed by the UN Human Rights Council last year for the first time ever, India distanced itself from that provision when Sweden, arguably the most gay-friendly country in the world, questioned its record in ensuring equality irrespective of a person’s sexual orientation. This is how Goolam Vahanvati, who was then solicitor-general and is now attorney-general, tried to save India’s face before the council as part of its official delegation. “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct. “As a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature’. Now in India we didn’t have this concept of something being ‘against the order of nature’. It was essentially a Western concept, which has remained over the years. Now homosexuality as such is not defined in the IPC, and it will be a matter of great argument whether it is ‘against the order of nature’.” Vahanvati’s admission on the international forum that the ban on homosexuality was a western import and its relevance was debatable flies in the face of the government’s unabashed efforts before the Delhi high court to retain Section 377, complete with its colonial baggage and archaic notion of unnatural offences. Whatever the politics behind this glaring contradiction, there is ample evidence placed before the high court by petitioner Naz Foundation substantiating in effect Vahanvati’s view that in the centuries prior to the enactment of section 377, India was rather accommodating of homosexuals. While the penalty imposed by Section 377 goes up to life sentence, there is nothing close to it in Manusmriti, the most popular Hindu law book of medieval and ancient India. “If a man has shed his semen in non-human females, in a man, in a menstruating woman, in something other than a vagina, or in water, he should carry out the ‘painful heating’ vow.” Thus, this peculiar vow, involving application of cow’s urine and dung, was meant not only for homosexuals but also errant heterosexuals. The penalty is even milder if the homosexual belongs to an upper caste. As Manusmriti puts it, “If a twice-born man unites sexually with a man or a woman in a cart pulled by a cow, or in water, or by day, he should bathe with his clothes on." Since Manusmriti was written at a time when bath generally meant taking a dip in a river or a lake with other members of the same gender, the penalty of making a homosexual bathe without taking off his clothes was probably designed to avoid the embarrassment of his being sexually aroused in public. In another indicator of the liberal Hindu heritage, Kama Sutra, a classic written in the first millennium by Sage Vatsyayana, devotes a whole chapter to homosexual sex saying “it is to be engaged in and enjoyed for its own sake as one of the arts.” Besides providing a detailed description of oral sex between men, Kama Sutra categorizes men who desire other men as “third nature” and refers to long-term unions between men.
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