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Optimism in India About Overturning Law Outlawing Homosexuality

  • Anjana Pasricha

Gay rights activists and their supporters hold colorful balloons and placards as they participate in a gay pride parade in New Delhi, India, Nov. 12, 2017.

At the annual Queer Pride parade held by India’s LGBT (lesbian, gay, bisexual, transgender) community in the Indian capital recently, the beat of drums was louder than usual — and the chanting and dancing more exuberant.

The reason: there is renewed optimism that a recent Supreme Court ruling has paved the way to overturn an archaic law that criminalizes gay sex.

The battle to do away with the colonial era law has taken a tortuous route. Scrapped in 2009 by the Delhi High Court, it was reinstated in 2013 by the Supreme Court, dealing a massive blow to gay rights.

At that time the top court said it was up to the legislature to change the law, but it has since agreed to review that ruling.

WATCH: Optimism in India About Overturning Archaic Law Outlawing Homosexuality

Section 377

Hopes for a favorable outcome are riding high after a recent landmark judgment in which the Supreme Court declared privacy as a fundamental right which must protect — among other things — sexual orientation.

Anjali Gopalan, founder of the Naz Foundation, which is at the forefront of the legal battle for gay rights, says that the judgment will have an important bearing when the Supreme Court reviews the law called Section 377.

“Five out of the nine judges, it was a nine judge bench, actually questioned the validity of 377. To me that is amazing. I feel a little easier after the privacy judgment,” said Gopalan, adding that the gay community felt “abandoned” in 2013 when the law was reinstated.

One of the organizers of the gay pride march, Manak Matiyani, says he was heartened to hear the top court say that some matters are not the business of the government. “In this case where it is consensual, where it is something you are not doing harm to anybody else, it is a private matter and that you have the right to decide who you are, how you will live your life, that made us very hopeful,” according to Matiyani.

Television journalists are seen outside the Supreme Court building in New Delhi, India, Aug. 22, 2017.
Television journalists are seen outside the Supreme Court building in New Delhi, India, Aug. 22, 2017.

Legal protection, societal acceptance

Some Hindu, Muslim and Christian religious groups oppose gay rights on the grounds of public morality. They appealed the Delhi High Court's 2009 judgement scrapping the law and got it overturned. They maintain Indian society frowns upon homosexuality.

The law, which makes gay sex punishable with up to ten years in prison, is seldom enforced and in some well-to-do neighborhoods people live openly as gay.

But it exposes those less privileged to harassment. A cook, Pobir Hazara, has found acceptance at the Naz Foundation where he works, but that is not the case when he travels in public transport or in public spaces. “When I meet friends in a park on a holiday, to relax, to have a drink, the police waves us away. They say you will create a nuisance and threaten to detain us if we don’t leave,” he says.

According to Gopalan, the lack of rights has a range of serious implications for the community. “If someone from the LGBT community,for example, is raped, it is really difficult for them go and register a case because Section 377 is in place, because they are not seen as part of society. Therefore, if we have a law which protects them, at least they have a recourse.”

March is still a protest

Marchers say the parade is the one day when they feel safe and able to express themselves openly.

However, Matiyani underlines that the parade is more than a celebration of gay pride. “It is important to remember that the march is still a protest; it is still out there to say that rights are not given to people.”

Participants say they are hoping for legal protection for their sexual orientation, a right taken for granted in most democratic countries, even in the tiny neighboring country of Nepal.

That legal protection could be an important stepping stone in winning greater societal acceptance for the community.

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