THE Indian capital's highest court ruled yesterday that gay sex was not a crime – a groundbreaking decision sure to open divisions in the deeply conservative country.
Delhi High Court decided that treating consensual gay sex as a crime was a violation of fundamental rights protected by India's constitution. The ruling, the first of its kind in the country, applies only in New Delhi.
"I'm so excited," said Anjal
i Gopalan, executive director of the Naz Foundation (India) Trust, a sexual health group that took the case to court. "We've finally entered the 21st century."
But some religious leaders were quick to criticise the legal ruling. Maulana Khalid Rashid Farangi Mahali, a leading Muslim cleric in the northern city of Lucknow, said: "This western culture cannot be permitted in our country."
The court's verdict came more than eight years after the New Delhi-based foundation filed its petition – not unusually long in India's notoriously clogged court system. The judgment can be challenged in India's Supreme Court.
Sex between people of the same gender has been illegal in India since a British colonial era law of 1861 that classified it as "against the order of nature". According to the law, gay sex is punishable by ten 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, and gay rights activists have long campaigned for it to be changed. The government has remained vague about its position, and law minister M Veerappa Moily said he would examine the court's ruling before commenting.
The verdict, however, should protect New Delhi's gay community from criminal charges and police harassment.
"This legal remnant of British colonialism has been used to deprive people of their basic rights for too long," Scott Long, director of the Lesbian, Gay, Bisexual, and Transgender Rights Programme at Human Rights Watch, said. "This long-awaited decision testifies to the reach of democracy and rights in India."
While the 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.
"This is just the first step in a longer battle," Ms Gopalan said.
Rights activists say the law, also popularly known as 377, or section 377 of the Indian Penal Code, 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.
The United Nations agency leading the fight against Aids welcomed the decision.
UNAids said the ruling would make it easier to reach homosexual men with lifesaving programmes to combat the spread of HIV.
Executive director Michel Sidibe said the ruling "restored the dignity and human rights of millions of men who have sex with men".
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.
Religious leaders in the capital and in other parts of India argued that gay sex should remain illegal and that open homosexuality was out of step with India's deeply held traditions.
"We are totally against such a practice as it is not our tradition or culture," said Puroshattam Narain Singh, an official of the Vishwa Hindu Parishad, or World Hindu Council.
In New Delhi, the Rev Babu Joseph, a spokesman of the Roman Catholic Church, told New Delhi Television that, while homosexuals should not be treated as criminals, "at the same time, we cannot afford to endorse homosexual behaviour as normal and socially acceptable".
