Friday, 7 September 2018

India’s Supreme Court unanimously strikes down law criminalizing gay sex

quote [ India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, a groundbreaking victory for gay rights that buried one of the most glaring vestiges of India’s colonial past. ]

Just in case, like me, you needed some good news today.

[article in extended]

NEW DELHI — India’s Supreme Court on Thursday unanimously struck down one of the world’s oldest bans on consensual gay sex, a groundbreaking victory for gay rights that buried one of the most glaring vestiges of India’s colonial past.

After weeks of deliberation by the court and decades of struggle by gay Indians, Chief Justice Dipak Misra said the law was “irrational, indefensible and manifestly arbitrary.”

News of the decision instantly shot around India. On the steps of an iconic courthouse in Bangalore, people danced, kissed and hugged tightly, eyes closed. In Mumbai, India’s pulsating commercial capital, human rights activists showered themselves in a blizzard of confetti.

The justices eagerly went further than simply decriminalizing gay sex. From now on, they ruled, gays are to be accorded all the protections of the Indian Constitution.

“This ruling is hugely significant,” said Meenakshi Ganguly, the South Asia director for Human Rights Watch. With restrictions on gay rights toppling in country after country, the ruling in India, the world’s second-most-populous nation, may encourage still more nations to act, she said.

Still, however historic the ruling of the court, considered a liberal counterweight to the conservative politics sweeping India, gay people here know that their landscape remains treacherous. Changing a law is one thing — changing deeply held mind-sets another. And few suggested that other major victories, like same-sex marriage, were on the near horizon.

Many Indians are extremely socially conservative, going to great lengths to arrange marriages with the right families, of the right castes. Loved ones who try to rebel are often ostracized. Countless gays have been shunned by their parents and persecuted by society.

Much of this may also be true in other parts of the world. But what made India stand out from most — at least until Thursday — was its application of an anachronistic law drawn up by British colonizers during the prim and often painfully proper Victorian era and kept on the books for 150 years.

The law banned sex considered “against the order of nature,” and thousands of people were prosecuted under it. But for gays in India, prison was only one of the risks. The law was often used as a cudgel to intimidate, blackmail and abuse.

Just to file the legal challenge that led to Thursday’s ruling was an act of bravery. The more than two dozen petitioners, who included gay, lesbian, bisexual and transgender people, could have been rounded up and arrested simply for identifying themselves as gay and coming forward.
A pride march last year in New Delhi. Acceptance of gay, lesbian and transgender people has grown in India, but the law known as Section 377 discouraged countless people from coming out.CreditRebecca Conway for The New York Times

On Thursday, conservative Christians, Muslims and Hindus, who often find themselves at odds with one another, blasted the ruling as shameful and vowed to fight it.

“We are giving credibility and legitimacy to mentally sick people,” said Swami Chakrapani, president of All India Hindu Mahasabha, a conservative group.

Gay activists said they needed to move carefully. The next step, they said, will be to push for more equality in the workplace. Gay marriage, they said, is still a long way off.

In their ruling, the justices said homosexuality was “natural.” They also said that the Indian Constitution was not a “collection of mere dead letters,” and that it should evolve with time.

The court did not rule that the law being challenged, known as Section 377, should be excised altogether. It can still be used, it said, in cases of bestiality, for instance. But it can no longer be applied to consensual gay sex.

The justices seemed moved by the stories they heard from the petitioners about harassment, blackmail, abuse and persecution.

“History owes an apology to members of the community for the delay in ensuring their rights,” Justice Indu Malhotra said.

Menaka Guruswamy, one of the lead lawyers representing gay petitioners, said that the court’s extension of nondiscrimination principles to gay people had laid a “very powerful foundation.”

“This decision,” she said, is basically saying: ‘You are not alone. The court stands with you. The Constitution stands with you. And therefore your country stands with you.’”

As the justices spoke, the crowd in the courtroom tried to remain composed. Outside, a cheer went up and people hugged.
Menaka Guruswamy, a lawyer for the petitioners, urged the Supreme Court to consider the effect that ending the law would have on gay people in their 20s. “Tell my young clients that their lives will be different,” she said.CreditVivek Singh for The New York Times

India has a complicated record on gay issues. Its dominant religion, Hinduism, is actually quite permissive of same-sex love. Centuries-old Hindu temples depict erotic encounters between members of the same sex, and in some Hindu myths, men become pregnant. In others, transgender people are given special status and praised for being loyal.

But that culture of tolerance changed drastically under British rule. India was intensely colonized during the height of the Victorian era, when the British Empire was at its peak and the social mores in England were austere.

In the 1860s, the British introduced Section 377 of the Indian Penal Code, imposing up to a life sentence on “whoever voluntarily has carnal intercourse against the order of nature.” The law was usually enforced in cases of sex between men, but it officially extended to anybody caught having anal or oral sex.

Though in recent years more gay Indians have come out, and acceptance of gay, lesbian and transgender people has grown to some degree, the fact that intimate behavior was still criminalized created much shame.

In hearings in July, lawyers argued that the law was out of sync with the times and legally inconsistent with other recent court rulings, including one made last year that guaranteed the constitutional right to privacy.

They pointed to similar hoary laws that had been toppled in the United States, Canada, England and Nepal, India’s smaller and poorer neighbor. And they went beyond classic legal arguments.

Ms. Guruswamy spoke of the decades-long relationship between two older petitioners, Navtej Singh Johar and Sunil Mehra, and the sacrifices they had made in their personal and professional lives to keep their partnership secret.

Ms. Guruswamy encouraged the judges to think of all the young gay people who did not want to follow that same road and spend their lives hiding who they really were.

“Tell my young clients that their lives will be different,” she pleaded. “The recognition of equal citizenship, that is the business of life, so that they know they are loved, protected.”

Interestingly, India’s leading politicians, who usually never resist an opportunity to weigh in on a hot issue, have mostly stayed out of the debate.
Ritu Dalmia, a celebrity chef, was one of the initial group of petitioners who challenged the law. Dozens more joined them as the hearings approached.CreditVivek Singh for The New York Times

Prime Minister Narendra Modi has said very little about gay rights, despite the conservative stance of his governing Bharatiya Janata Party on many social issues. The central government announced in July that it was not going to take a position on Section 377.

It was some of India’s Christian groups that put up the most aggressive defense of the law. Lawyers for these groups argued that sexual orientation was not innate and that decriminalizing gay sex would lead to the transmission of H.I.V.

Prosecution under the law was relatively rare. In 2014, 1,148 complaints were filed. In 2016, the number nearly doubled, to 2,187. That year, over 1,600 cases were sent for trial.

Many gays feared that if they reported crimes like rape, they would be the ones arrested. Some gay people shared stories about being raped by police officers and then threatened with jail time if they ever came forward.

For several years, Section 377 was in the cross hairs, with the courts going back and forth.

In 2009, a court in New Delhi ruled that the law could not be applied to consensual sex. But Hindu, Muslim and Christian groups filed appeals in the Supreme Court, and in 2013, the court restored the law, saying that Parliament, and not the courts, should take up the issue. In its decision that year, the Supreme Court said only a “minuscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders.”

But gay activists did not give up. They regrouped and began looking for people willing to serve as petitioners and endure the personal scrutiny the case would bring. In 2016, five gay and lesbian Indians submitted a writ petition challenging Section 377 on the basis that it violated their rights to equality and liberty.

The initial group of petitioners in the latest challenge included Mr. Johar, a dancer, and his partner, Mr. Mehra, a journalist; Ritu Dalmia, a celebrity chef; Ayesha Kapur, a businesswoman; and Aman Nath, a hotelier.

As the Supreme Court prepared to hear the case, more than 25 other Indians with varied social and economic backgrounds joined them.

Among those to file a petition was Anurag Kalia, 25, an engineer living in Bangalore, who was once so afraid to say the word “gay” that he practiced doing so in front of the mirror.

“I used to whisper it,” he said.

As the court prepared to announce its verdict on Thursday, Mr. Kalia checked his phone “like crazy,” he said. After the ruling, he stepped out of his office for a few quiet moments, feeling ready to celebrate, a bit numb, unsure of what the future held, but also feeling “relief, relief.”

“It feels like there’s much more to come,” he said. “This is just the first strike.”
[SFW] [crime & punishment] [+10 Good]
[by Hugh E.@12:16amGMT]


Hugh E. said @ 4:00am GMT on 9th Sep [Score:2]
It's funny, this comment section wasn't hijacked by a troll, but merely the echo of a troll. That's how insidious they can be.

steele has advocated downmodding into oblivion. I think trolls should simply be ignored; no response, no mod, no mention. I went against my instincts, gave into righteous anger and responded to what I thought was a troll. For what? And now it's all -10.

So, maybe Steele has a point: If you don't see it, you won't poke at it. You're not going to debate Bannon out of white supremacy. Yiannopoulos is not going to say anything of worth hearing, so stop booking him. And the trolls here don't even rise to either of them.

So to get back to the point. (intentionally not using spoiler tag or sizing - I'm anti-trolling!)

eggboy said @ 8:59am GMT on 8th Sep
What is this crap.

Steele, can we please get an option to change our filter threshold to not have to deal with this bullshit.
steele said @ 10:10am GMT on 8th Sep
That would defeat the point. So, no.
eggboy said @ 10:51am GMT on 8th Sep [Score:2]
Ah fuck it, I quit
5432 said @ 12:57pm GMT on 8th Sep [Score:-2]
filtered comment under your threshold
notFish said @ 12:43am GMT on 7th Sep [Score:-10]
filtered comment under your threshold
steele said @ 1:45am GMT on 7th Sep [Score:2 Underrated]
Guess who doesn't have time for this shit?
Hugh E. said @ 12:53am GMT on 7th Sep
Not today, Satan. Not today.
Hugh E. said @ 12:56am GMT on 7th Sep
My bad. I didn't get the joke. Will make karmic balance elsewhere.
Taxman said @ 10:59pm GMT on 7th Sep [Score:-10]
filtered comment under your threshold
steele said[1] @ 11:01pm GMT on 7th Sep [Score:-10]
filtered comment under your threshold
arrowhen said @ 11:57pm GMT on 7th Sep [Score:-10]
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steele said @ 12:03am GMT on 8th Sep [Score:-10]
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arrowhen said @ 1:25am GMT on 8th Sep [Score:-10]
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milkman666 said @ 12:16am GMT on 8th Sep [Score:-10]
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arrowhen said @ 1:23am GMT on 8th Sep [Score:-10]
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Milkman6b6 said @ 1:39am GMT on 8th Sep [Score:-10 Insightful]
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steele said @ 1:50am GMT on 8th Sep [Score:-10]
filtered comment under your threshold
arrowhen said @ 2:20am GMT on 8th Sep [Score:-10]
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Hugh E. said @ 2:02am GMT on 8th Sep [Score:-10]
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Taxman said @ 11:06pm GMT on 7th Sep [Score:-10]
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