Gay Freedom in India

The Supreme Court has said it would start the process to test the constitutional validity of Delhi High Court's decision to decriminalize same gender consensual sex between adults on April 19.

This is in response to over a dozen petitions and applications challenging the HC's July 2, 2009 verdict, which said police could not arrest adult members of the LGBT community under Section 377 of IPC.

However, it rejected one Suresh Kumar Koushal's plea to include the Army, Navy and IAF as parties. Koushal claimed the armed forces had clarified that they would not legalize same-gender sexual relationship.

To fast-track the hearing and cut out lengthy arguments from counsel on the issue, it asked all parties to file their written submissions within eight weeks.

The court had earlier entertained a host of appeals against the HC verdict but refused to grant interim stay on its operation.

While the challenge mounted by individuals and NGOs to the Delhi High Court judgment decriminalising gay sex is still pending in the Supreme Court, the Ministry of Home Affairs (MHA) has quietly set in motion a move to take same-gender sex out of criminal jurisprudence.

A communication from the MHA to the Ministry of Law and Justice, sent earlier this week, asks the latter to prepare a draft of an amendment Bill to the Indian Penal Code (IPC), the most striking feature of which is that Section 377 would no longer deal with the offence involving voluntary carnal intercourse against the order of nature between consenting adults of the same gender.

The proposed amended Section 377 reads: Whoever voluntarily has carnal intercourse with animal shall be punished with imprisonment for life, or with imprisonment or either description for a term which may extend to 10 years and shall also be liable to fine .

Bollywood is the world's most prolific film industry, but for decades one plotline has dared not speak its name. Now the sub-continent's ultimate cinematic taboo is to be broached, with the first depiction of a gay kiss.

Months before its release, Dunno Y . . . Na Jaane Kyun has already been called India's answer to Brokeback Mountain . The film, which promises to break new ground by telling the story of a serious, and explicitly sexual, relationship between two Indian men, comes after a law outlawing homosexuality was overturned in the Delhi High Court.

Little is known of the project, which is due to premiere in May, but promotional posters showing two semi-naked young men in a passionate embrace have already fuelled controversy.

Gay activists say that they are braced for a backlash from religious and political conservatives, many of whom opposed the repeal of Section 377 of the Indian Penal Code — a law that bracketed homosexuality with bestiality and paedophilia as crimes against nature , punishable by up to ten years in prison.

The decriminalisation of homosexuality is awaiting final approval by the Supreme Court, which is expected to be given after the Government backed the move last year.

India's first lesbian, gay, bisexual and transgender (LGBT) pride shop has opened up in Mumbai. The flagship shop, Azaad Bazaar, on 16th Road, Bandra, sells a range of items such as mugs, T shirts, and ashtrays to encourage lesbians and gays to have pride in their identity and identify straight supporters.

Products include double male symbol, female symbol, bisexual symbol and sexy bitch stud earrings. Mugs saying Equal Rights 377, Ban 377, Pink Sheep of the Family and Out in India are also available.

A range of rainbow-coloured bangles, fake eyelashes, key chains and photo frames are stocked too — the rainbow being an international symbol of gay pride, with the rainbow flag often used at LGBT rights marches.

Homosexuality among consenting adults was made legal in July 2009 when it was decriminalised by the High Court of Delhi. The case is now in the Supreme Court, which is why the shop still stock mugs saying Ban 377, owner Sabina says. She co-founded the business under the name Jailbird, with her partner Simran in 2006.

Sabina refuses to reveal their full names, but says they are both women in their early 30s, who are entrepreneurs who recognised a gap in the market. She estimates there are up to 20 million middle class members of the LGBT community in India.

The shop does not sell sex toys or kinky products. We have gay people who walk in with their families, and their nephews and nieces race around the store. It's a very safe space, Sabina says.

The store also has a noticeboard promoting gay events, support groups and helplines. It's not just a gay pride store, it's a socially conscious store, Sabina said.

Sridhar Rangayan is a gay activist, makes movies on issues confronting the community and is delighted with the Delhi High Court order decriminalising consensual gay sex between adults. Now, he feels it's high time the censor board also updates its rule book.

Rangayan has made three films on homosexuality -- the first is still lying with the censor board, the second he did not bother to submit for certification at all and the third has been accepted by the Central Board of Film Certification but with an 'A' [adult] certificate.

The censor board has rules which are antiquated and it's not accepting today's trend. I think it's time to fight to get the censor board rules changed. What we need is to have some young people as part of the core committee, Rangayan told IANS.

In 2003, he made Pink Mirror , which is said to be India's first film on drag queens. Though it has been screened at various NGO meets, it has yet to be screened in India: I approached the censor board thrice for the certificate and every time they rejected the movie. There is no nudity, titillation in my film. I have depicted my characters very sensitively, still I didn't get the certificate .

They had strange reasons to reject the film. They say that I have not depicted the gay community in good light. It was funny because I'm know the community very well. They wanted my characters to be apologetic for being gay. They wanted me to show characters crying and asking why god has made them like this, said Rangayan, who is founder of the Mumbai-based The Humsafar Trust that advocates gender and sexuality issues.

When Rangayan made his second film Yours Emotionally in 2006, he didn't bother to take it to the censor board and instead it screens it at NGO meets. The film is about two best friends - Ravi and Paul. The two come to India on a vacation and attend an all night gay party. Surprised by the openness of their hosts and the aggressiveness of the guests, the boys fall into the steadily growing Indian gay culture.

His third film 68 Pages , however, has got an A-certificate from the board and he is hoping for a commercial release.

Another director who has made a film on the issue is Ashish Sawhny. His Happy Hookers is a documentary that explores the secret world of male sex workers in the country.

Then there is US-based Indian filmmaker Manan Singh Katohora's When Kiran Met Karen . It is about a Bollywood actress called Kiran who is on the verge of becoming an international movie star until she meets sexy magazine journalist Karen and they find themselves swept up in a torrid affair.

None of these films have been released in India. As Rangayan says, perhaps we will have to wait till the censor board changes it rules.

An Indian court has overturned a 148-year-old colonial law banning homosexual relationships saying it was an affront to human dignity.

Campaigners described the ruling as India's Stonewall moment, a reference to historic riots by homosexuals in New York which are regarded as the inspiration of the modern gay rights movement.

The ban on homosexual relations was introduced by British colonial officials and describes sexual intercourse between people of the same sex as an unnatural offence.

Indian government officials had said same sex relationships were indecent, against Indian values, and if decriminalized would lead to an increase in delinquent behaviour and pose a health hazard to society.

Their argument was rejected yesterday by Delhi's High Court judges who said the ban denied gays equal rights and was an affront to human dignity. In our view Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," the judges commented.

Their ruling will take precedence over India's Penal Code until the parliament passes a new law on equality.

Religious groups, including leading muslim clerics and catholic clergymen, said despite the judgment, they still regarded homosexuality as immoral. Ahmed Bukhari, the chief imam at Delhi's historic Jama Masjid mosque, said: This is absolutely wrong. We will not accept any such law.

Update: Court Judgement Challenged

10th July 2009. Based on article from edition.cnn.com

A landmark ruling that legalized gay sex between consenting partners in India was challenged Thursday in the country's high court, lawyers said.

The supreme court issued a notice to the nonprofit Naz Foundation that had won a lower-court verdict after a seven-year legal fight to decriminalize gay sex. Notices also were issued to the federal government and the New Delhi high court, which ruled last week that consensual sex between partners of the same gender was legal.

An astrologer filed a petition challenging the ruling. The petitioner argued that no constitutional right is violated by the Indian penal code's Section 377, which had outlawed gay sex, said his lawyer Praveen Agrawal. The petition also cited Indian culture and health as grounds for seeking a stay on last week's ruling.

The supreme court posted the next hearing for July 20.

The Indian Central Government has announced plans to repeal a 150-year-old law that criminalizes homosexuality in India.

The news has come as a major victory for Gay Right activists even as the government announced its intent to decide after consulting the Church and representatives of other religious groups.

The announcement was made by Union Law Minister Veerappa Moily who would be meeting Home Minister P. Chidambaram and Health Minister Ghulam Nabi Azad to discuss on the controversial section 377 of the Indian Penal Code.

The Section 377, which was formulated by the British in the 17th century, terms same sex relationships as a criminal act and makes it punishable with an imprisonment of 10 years.

The Cabinet has mandated to have a re-look at the provision. But we are not going to rush to any conclusion. We will certainly take into account concerns of all sections, including religious groups like Christian church, Moily said at a press conference.

So far the Church has remained mum and is yet to officially voice its discontent against the amending of Section 377. This is a very sensitive issue and the Church is yet to come out with its statements, Bishop Sahu of the National Council of Churches in India (NCCI) told Christian Today.

Joseph Dias, general secretary of the Catholic Secular Forum said: The Church's stand on the issue has always been clear. For us it is an unnatural act, against the divine law. We will definitely oppose it.

The Delhi High Court on Friday has reserved its verdict on petitions filed by gay rights activists seeking decriminalisation of homosexual acts among consenting adults in private.

A Bench comprising Chief Justice A P Shah and Justice S Muralidhar asked the Centre and anti-gay rights activists, including senior BJP leader B P Singhal, to file their response in the matter by next Monday.

The petitioners pleaded that the criminal provision against homosexual behaviour should be scrapped for consenting adults who indulge in such acts in private.

They contended that Section 377 of the Indian Penal Code which provide punishment upto life imprisonment is violative of their fundamental right.

The Centre, however, opposed the petition saying that such behaviour is immoral and cannot be allowed in Indian society.

Testing the government's logic justifying ban on homosexuality, Delhi High Court asked it to table evidence that AIDS had spread in countries
where homosexuality has been decriminalised.

The judges also pulled up the Centre for relying on religious texts to justify the prohibition on consensual sex between adults of same sex: We won't be first country to decriminalise in case we do. Show us AIDS has spread where homosexuality has been decriminalised. Place some authentic study like one backed by UN .

The court's remarks came when the solicitor general P P Malhotra cited an article condemning gay sex which was religious in nature and in which racial profiling had been done to arrive at conclusions. We should not accept religious literature instead of scientific report. In a secular country how can a government rely on a report which says that certain races contribute more to homosexuality?, the bench remarked, adding: These are not scientific reports. This is a propaganda. Your arguments should be based on scientific reports. Show us scientific reports which justify criminalisation of such acts.