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Decriminalizing Same Sex Relations in India: A Legal Beginning

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Decriminalizing Same Sex Relations in India: A Legal Beginning

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by Aditi Bhaduri
India

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India’s recent decriminalization of same sex relations has given hope to many that the country’s tolerance and policy is shifting. Photograph by flickr user lighttripper used under Creative Commons licenses.

A mini revolution is underway in India. On July 2nd the Delhi High Court read down a 149-year-old archaic law that criminalized same sex relations. It is a tiny victory for a battle that has long been fought in courtrooms, bedrooms and counseling halls across India.

It was a petition to legalize gay sex filed in the Delhi High Court in 2001 by the Naz Foundation, an advocacy group for homosexuals, that began the legal debate and movement to squash Article 377.

AP Shah and S Muralidhar, the bench that presided over the case, cited that “It cannot be forgotten that discrimination is an antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

The judgment has galvanized Lesbian-Gay-Bisexual-Transgendered (LGBT) activists across India. Historically in ancient India same sex relations were acknowledged and existed without any history of persecution. According to sociologist Ruth Vanita “Variations in gender and sexuality have been discussed in Hindu texts for over two millennia; same-sex love flourished in pre-colonial India, without any extended history of persecution.” However, she says it all changed when European Christians arrived in India and “were shocked by Hinduism…and by the range of sexual practices, including same-sex relations.”

Article 377 of the Indian Criminal Penal Code read that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This law, which criminalized consensual same sex relations, was framed in 1860 by the then British colonial government in India. It has been used widely across India to oppress and extort money from people involved in same-sex relations.

While the law speaks about sodomy, it has also been used against women in same sex relationships. Malobika is the founding activist of Sappho For Equality, the first organization in Eastern India for lesbians and transgendered people. She recalls that when she wanted to rent a house with her partner they had a tough time. When they finally found one, they were thrown out when the owner discovered their relationship. They also had trouble opening bank accounts jointly. Both marriage and adoption remain dreams.

Though the country has recorded a couple of lesbian and gay marriages, these cases are, however, few and far between.

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Persecuted both socially and legally since the 1860s, same sex couples in India have a legal beginning for equal rights. Photograph by flickr user nickjohnston used under Creative Commons licenses.

The southern Indian state of Kerala, for instance, has reported numerous cases of lesbian suicides. Shunned by their families, friends and colleagues when they “came out,” suicide seemed the only available option.

For transgendered people like Parween from Bangalore, Article 377 has been a terror. Born a biological male with a “female heart,” Parween eventually underwent a sex change operation. “The police would pick me up whenever they found me alone, take me to the police station, take away my money, rape me and then let me go.” Parween now works with Sangama, another organization that works for the rights and empowerment of LGBT groups in Bangalore.

For all these women, the decision of the Delhi High Court has come as a great respite.

“It is not perfect, it is just a reading down – it only decriminalizes the act, it does not give sexual minorities any rights,” cautions Malobika, but she is optimistic. “At least it opens up a legal and official debate. Now there is official acknowledgment that sexual minorities exist and this opens up the doors to greater advocacy, and rights like same sex marriages, adoption, inheritance and security for us.”

Of course, the journey towards equality has just begun and the road ahead seems fraught with challenges. Already counter-petitions challenging the court’s judgment have been filed by various groups and individuals opposing the law. Allegations have been made that the law will render children more vulnerable to sexual abuse, which legal experts feel are unfounded. And the judgment has come from the High Court of Delhi, which does not have jurisdiction over the rest of India. It can, however, serve as a powerful legal precedence, and can influence future legislation.

The Ministry of Law, in a recent announcement, said that it will wait for the courts to frame the law. The community and their supporters are eagerly waiting and watching, cautiously hopeful for a new era of LGBT rights.

For those like Malobika, the judgement is “simply historical.”

About the Author
Aditi Bhaduri is an independent journalist and researcher based in India. With a background in international relations, specializing in the Arab-Islamic world (specifically the Israel-Palestine conflict), Russian linguistics, displacement and gender, she began her writing career by covering the Middle East for the Indian media. Currently Aditi’s work focuses on conflict, peace, displacement and gender. She acts as a gender consultant to various NGOs and started the Human Rights for Beginners program in schools in her native city of Kolkata. Aditi is also a member of several civil society initiatives in India and was on a Rotary Goodwill Exchange Program to the USA.

Aditi’s work has been published widely, both in Indian and foreign print and electronic media. She is currently co-editing a book on displacement in Asia-Pacific. She was awarded the UNFPA-Population First LAADLI National Media Award 2008 for gender sensitive reporting and hopes to establish her own publication dedicated solely to peace journalism.

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Written by gaybombay

September 29, 2009 at 6:13 pm

Posted in Uncategorized

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