Indian Gov’t OKs Court Finding Decriminalizing Gay Sex

by Kilian Melloy

EDGE Staff Reporter

Wednesday September 2, 2009

The Delhi High Court has ruled that gay and lesbian adults may engage in consensual sexual intimacy without being liable to criminal charges. Now, the government has determined not to challenge that ruling.

A Sept. 2 article at the Hindustan Times recalled that different government offices had contradicted one another before the high court in last year's hearing over a petition to strike down anti-gay parts of the penal code.

Under the contested provisions, which date back to 1860 and British Colonial rule, consensual gay sex between adults was punishable by stiff jail terms of up to ten years.

The Home Ministry sought to uphold the anti-gay law, but the Health Ministry sought to see it struck, citing a need to decriminalize and de-stigmatize gay people and their relationships so as to better combat the spread of HIV.

The court issued its decision on July 2, striking down anti-gay portions of Article 377 that criminalized sex between consenting adults of the same gender.

The court left intact portions of the article that outlawed sexual violence and sex with minors.

After the opposing ministries coordinated along with the Law Ministry, they produced a legal document that indicates that the government will not seek to overturn the judgment on the basis that no "legal error" was made in the court's finding, "which has not struck down the entire Section 377 of the Indian Penal Code (IPC)," the Hindustan Times article said.

The article quoted Law Secretary TK Vishwanathan, who said, "Since the court has not struck down the entire section, and has confined itself to consensual acts in private, it will be difficult for the government to question the HC judgment."

Though the initial ruling applied only to the city of New Delhi, the government's finding that the court's decision is valid opens the way to the decriminalization of gay sexual intimacy across the entire country.

The note from the government ministries acknowledged that, "The correctness of the Delhi High Court judgment has been challenged in an appeal before the Supreme Court," reported UK GLBT site Pink News in a Sept. 2 article.

"The government may submit before the Supreme Court that there does not appear to be any legal error in the judgment and the Supreme Court may take a final view whether the judgment of the High Court is legally correct," the note continued.

The Pink News article reported that although the country's prime minister, Manmohan Singh, is still free to bring opposition to the ruling, indications are that Mr. Singh will not do so.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.