LGBTI laws outside of North America

India

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The term "LGBTI" is an acronym for "Lesbian, Gay,
Bisexual, Transgender/Transsexual, and Intersexual.

Background:

Section 377 of the Indian penal code dates from 1861, during the British colonial era. Now 148 years old, it still criminalizes "carnal intercourse against the order of nature." The law establishes punishment up to ten years in jail. Convictions were rare, but the law contributed to the oppression of sexual minorities in the country.

The law was placed on the books long before scientists established that same-gender sexual behavior is normal and natural for a minority of humans. All mammals engage in it, as well as many other animals.

2009-JUL-02: New Delhi, India: Same-sex behavior decriminalized:

The New Delhi High Court issued a 105 page judgment, ruling stating that the 148-year-old law prohibiting consensual same-sex sexual acts by adults was: discriminatory, a "violation of fundamental rights," and thus unconstitutional. It carries a jail sentence of up to ten years. The ruling said, in part:

"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."

Although the ruling only applies to India's capital city, the government of India was expected to either appeal the decision to the country's Supreme Court, or to repeal the 1861 law -- Section 377 of India's penal code.

National Public Radio commented:

"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. The last two years have also seen large gay pride parades in New Delhi and other big cities such as Mumbai and Calcutta. Still, being gay remains deeply taboo in most of the country, and a large number of homosexuals hide their sexual orientation from their friends and families."

	Within hours of the issuance of the court decision, dozens of members of New Delhi's gay community gathered to celebrate. Anjali Gopalan, executive director of the Naz Foundation (India) Trust -- the sexual health organization that launched the lawsuit eight years previously -- said: "I'm so excited and I haven't been able to process the news yet. ... We've finally entered the 21st century."
	Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council, said: "We are totally against such a practice as it is not our tradition or culture."
	Sumith Baudh, a member of Voices Against 377, a coalition of gay-positive advocacy groups, said: "I am so proud of India. The ruling was made in the most exquisite terms of equality, of dignity, of privacy and of respect for all human rights. We know this will translate for the lives of many Indians into creating more tolerance, fighting harassment, isolation and depression they have long suffered."
	Kamal Farooqi of the All India Muslim Personal Law Board called the ruling "... a sad day for civilized society." 2
	Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch issued a statement saying: "This legal remnant of British colonialism has been used to deprive people of their basic rights for too long. This long-awaited decision testifies to the reach of democracy and rights in India." 3
	Maulana Khalid Rashid Farangi Mahali, a prominent Muslim cleric in Lucknow in northern India said: "This Western culture cannot be permitted in our country." 3
	Rev. Babu Joseph, a spokesman of the Roman Catholic church in New Delhi said 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."
	Arvind Narrain, a lawyer involved with the case, said: "The symbolic value of this judgment is unmatched. It says lesbians, gays, bisexuals and transgender people are citizens with equal rights."

2009-JUL-20: Indian Supreme Court refuses stay:

The petitioner before the New Delhi High Court, astrologer Suresh Kumar Kaushal, asked the Supreme Court to issue a stay of the JUL-02 ruling of the High Court.

The Supreme Court denied his petition, noting that:

"... there are no serious consequences of the High Court's order. If there was any apprehension of criminal cases being filed, this court would have interfered."

The Court asked the Union Government of India to clarify its stance on gay rights.

2012-FEB-23: Hearing before the Indian Supreme Court:

Conservative groups in India had appealed the New Delhi High Court ruling to the Supreme Court.

On FEB-23, Additional Solicitor General P. P. Malhotra, a government lawyer, told the Supreme Court that same-gender sexual behavior is "...highly immoral and against social order and there is high chance of spreading of diseases through such acts." He concluded that it should be banned.

Some media outlets speculate that the lawyer may have read an earlier government document that has since been reversed.

Within hours, the Home MInistry of the Government of India had repudiated the lawer's statement. They issued a statement stating that the Cabinet had decided to not challenge the 2009 Delhi High Court ruling, and that the ministry "... has not taken any position on homosexuality." ₅

Disclaimer:

This image is provided for general information only. If you are considering travel to India we strongly recommend that you obtain up-to-date information on the status of protection/recognition/persecution laws in that country.

References used:

The following information source was used to prepare and update the above essay. The hyperlink is not necessarily still active today.

1. "LGTBI rights in the world." International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 2008-MAY, at: http://www.ilga.org/
2. "New Delhi court overturns gay sex ban," The Dallas Morning News, 2009-JUL-03, at: http://www.dallasnews.com/
3. "New Delhi Court Decriminalizes Homosexuality," NPR, 2009-JUL-02, at: http://www.npr.org/
4. "Gay Law: SC refuses to stay HC judgement [sic]," NewKerala.com, 2009-JUN-20, at: http://www.newkerala.com/
5. Muneeza Naqvi, "India's Gay Sex Legality Debate Creates National Confusion," Huffington Post, 2012-FEB-23, at: http://www.huffingtonpost.com/

Original posting: 2009-JUL-03
Latest update: 2012-MAR-06
Author: B.A. Robinson

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