Washington Blade - July 10, 2009
Chris Johnson

The ruling, issued July 2 by the High Court of New Delhi, triggered celebration among advocates of LGBT rights who believe further advances in India and throughout the world could follow.

Justices determined that the law criminalizing homosexual acts, Section 377 of the Indian Penal Code, violates the spirit of "inclusiveness" in Indian constitutional law.

"The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone," the justices wrote.

The law criminalizing homosexuality was imposed on India in the 19th century when the United Kingdom controlled the subcontinent as its colony.

Justices determined that Indian constitutional law doesn't "permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are."

"It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual," the decision states.

Justices cited international court decisions granting rights to LGBT people in the court decision, including the U.S. Supreme Court's 2003 decision in Lawrence v. Texas, which struck down state sodomy laws in the United States.

The decision also draws on a proposed statement in the U.N. General Assembly that would call for the decriminalization of homosexuality. Earlier this year, the Obama administration signed on the United States as a supporter of the proposal.

Mark Bromley, chair of the Council for Global Equality, said the ruling is "quite significant" for a number of reasons.

"It's a very thorough and well-reasoned decision and à really does paint a very positive picture of the increasing realization that laws criminalizing consensual homosexual conduct, consensual homosexual relationships are fundamental violations of human rights," he said.

Bromley said opponents of the law in India have been working to overturn the law for around seven years and "really [have] galvanized public support and diverse sectors of the human rights community in India."

Abhay Prasad, a board member of Trikone, a San Francisco-based support group LGBT South Asians, said he's "thrilled with the decision."

"It is a such a huge step forward for the LGBT community," he said. "We were kind of hoping for it, but it's something I didn't quite believe would happen."

A gay India native and businessperson, Prasad said he immigrated to the United States in 2004 because he didn't think the laws in India were favorable to LGBT people. He said he feels like the court decision gives him the option of returning to India at some point.

The code was "only rarely enforced" in terms of jailing gay people in India, Bromley said, but he added that the code was more often used "to harass, detain and extort individuals on the street."

He also said the law limited HIV/AIDS work in India, which was an important basis for the challenge.

Bryan Dalton, acting minister counselor for consular affairs at the U.S. embassy in India, said in a phone interview with the Blade from India that it's "hard to predict" if the decision will lead to other advances for LGBT people in India.

"I have read all the press accounts showing how encouraged the LGBT community universally welcomed the decision, [but] there were some voices of concern about the finding," he said.

But Dalton said discussion about the decision means "the debate about sexuality and the rights of sexual minorities is now more open than it was before."

The reach of the court decision is in question. Bromley said the court technically only has jurisdiction in the area surrounding New Delhi, but added other courts in India would probably yield to the court's decision.

"It's anticipated that other courts of equal stature will follow the precedent, and that certainly other courts of lower jurisdiction would also follow it," he said.

But Dalton said the decision was rendered by "essentially a state-level court" and can still be appealed to the Indian Supreme Court.

"Some parties have been quoted in the press saying that they will do an appeal," he said.

Dalton said other courts in India could cite the decision as precedent, but other states could pass laws or other courts could make decisions in opposition to the ruling.

Bromley said that while U.S. activists were hoping for a favorable outcome in the decision, there was no U.S. involvement in the litigation, which he called "an Indian enterprise that was really led by some fantastic Indian jurists."

"I think the value of this was it was truly an Indian-led movement to overturn the vestige of the colonial system that was imposed upon them, and it truly was a very domestic Indian effort," he said.

In addition to spreading throughout India, Bromley said, the decision could lead to action in other former parts of the British Empire that have similar laws prohibiting homosexuality.

Bromley said there is a similar code against homosexuality in Singapore, and said the India decision "could give weight and momentum to the legal effort" against the law in that country. He also said he's hopeful the India decision will have some influence in Caribbean countries, where homosexuality is outlawed because of British statutes.

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