Indian court overturns ban on gay sex

Published on Thursday 2 July 2009 11:16

AN INDIAN court today ruled that gay sex was legal in a groundbreaking decision overturning laws dating back to the British colonial era.

The Delhi High Court ruled that treating consensual gay sex as a crime is a violation of fundamental rights protected by India's constitution.

The ruling, the first of its kind in the deeply conservative country, applies only in New Delhi.

"I'm so excited and I haven't been able to process the news yet," Anjali Gopalan, the executive director of the Naz Foundation (India) Trust, a sexual health organisation that had filed the petition, said.

"We've finally entered the 21st century."

The court's verdict came more than eight years after the New Delhi-based foundation filed its petition. That is not unusually long in India's notoriously clogged court system. The verdict can be challenged in India's Supreme Court.

Sex between people of the same gender has been illegal in India since a British colonial law that classified it as "against the order of nature." According to the law, gay sex is punishable by 10 years in prison. While actual criminal prosecutions are few, the law frequently has been used to harass people.

The law itself can only be amended by India's Parliament, but the court's verdict should protect New Delhi's gay community from criminal charges and police harassment.

While the Delhi High Court's ruling is not binding on courts in India's other states, Tripti Tandon, a lawyer for the Naz Foundation, said she hoped the ruling would have a "persuasive" affect.

Rights activists say the law sanctions discrimination and marginalises the gay community. Health experts say the law discourages safe sex and has been a hurdle in fighting HIV and AIDS. Roughly 2.5 million Indians have HIV.

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.

However being gay remains deeply taboo and a large number of homosexuals hide their sexual orientation from their friends and families.

Supporters of the law, which include leaders of conservative Hindu political and religious groups, argue that gay sex should remain illegal and that open homosexuality is out of step with India's deeply held traditions.