Landmark judgment signals victory for gays in India

It’s in many ways a turning point for India. The ruling by the Delhi High Court today, which in effect decriminalises homosexuality, is a landmark judgment, especially considering the society we in India live in. There is a Chennai connection here - Chief Justice of the Delhi High Court A. P. Shah was only a few months ago Chief Justice of the Madras High Court. Sources say that he is a judge known for his progressive rulings and with today’s judgment he will win more hearts on that score. Justice Muralidhar was the other judge who teamed with Shah to overturn the gay sex ban.

Interestingly, according to the New York Times, homosexuality has been illegal in India since 1861, when British rulers codified a law prohibiting ‘carnal intercourse against the order of nature with any man, woman or animal’. The law, known as Section 377 of India’s penal code, has long been viewed as an archaic holdover from colonialism by its detractors, say writers Heather Timmons and Hari Kumar. Britain legalised homosexuality in England and Wales in 1967, adds the report, but many of its former colonies, including Singapore, Zimbabwe and Malaysia, still retain strict laws against same-sex relations.

India is the world’s largest democracy. People enjoy their freedom here; many misuse it. However, people are bound by social mores, customs and tradition. Although liberalisation in the early 1990s and the IT boom that followed not only opened up the country’s economy but also opened up people’s minds, there is still a large section that adheres to custom and what society considers ‘correct’ behaviour. Looking at today’s judgment in that context, I wonder how much of a change on the ground we will get to see. Will gays and lesbians come out in the open to marry or lead lives together? As the Times report points out, it is not uncommon for gay men and women (in India) to marry heterosexuals and have families, while carrying on secret relationships with members of the same sex. So, will families be jettisoned from now on in favour of such secret relationships? It is not very hard to tell – I would say no. Things will remain pretty much the same.

Will the judgment erase the stigma many associate with same-sex relationships and transgenders? Indeed, in my view, the judgment might not help change the attitude people generally have toward homosexuals, lesbians, hijras or eunuchs. Hijras, unfortunately, are looked down upon, often treated with contempt and derision. Will that attitude change on our streets and public places, on buses and on trains? I doubt it. It’s all well for judges to rule in a courtroom, but things don’t really transform as much on the ground. The learned judges have, of course, based their ruling on the premise of ‘equality before the law’ which Article 14 of the Indian Constitution guarantees, discrimination ‘on grounds of religion, race, caste, sex or place of birth’ which Article 15 prohibits, and ‘protection of life and personal liberty’, which Article 21 ensures.

Also, there is the acceptability factor among people themselves. The Times report quotes Maulana Abdul Khaliq Madrasi, a vice chancellor of Dar ul-Uloom, the main university for Islamic education in India, as saying that the ruling will “corrupt Indian boys and girls”. Murli Manohar Joshi, the leader of the main opposition Hindu nationalist Bharatiya Janata Party has called for an overturning of the ruling. The courts cannot decide such issues, he says. The Wall Street Journal mentions that a grouping of Indian Catholic bishops saying the church doesn't oppose the decision but doesn't support extending rights to marriage rights for gay or lesbian Indians. Though the majority of Indians may not really care – after all, it is an individual decision – and would be happy to see the gays happy, there will be others who will fight to disagree.

Of course, in recent years gay and lesbian relationships have been accepted in India's cities. Last Sunday saw gay Pride Marches in Delhi, Chennai and Bangalore. Kolkata's is coming up this week.

Today is a victory day for the gays, and let’s be happy for them. Let's also hope that the judgment will give many of them new confidence to lead the lives they've always wanted to lead, without fearing public ridicule or being ashamed of themselves.

(Picture shows transsexuals celebrating during the Pride March in Bangalore; courtesy BBC, AFP/Getty Images; photographer Dibyangshu Sarkar.)


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