NEW DELHI — Mukteswar Temple is one of the most petite of the Indian temples. Build in the 10th century, its intricate and wildly imaginative erotic carvings are more familiar to the average non-native than its name. Often associated in people’s minds with the Kama Sutra, the temple is one of many celebrations of sensual spirituality that stand in stark contrast to the modern nation’s prudish policies, which include deeming public kisses to be obscene behavior. For same-sex couples in the country, however, life has become a little less repressed. Although the Delhi High Court ruling only applies to the capital city itself, its decision to decriminalize consensual same-sex intimacy is monumental in its importance and expected to influence other regions of the country – or lead to legal battles in India’s Supreme Court.
However things play out in the long term, the ruling is groundbreaking because, for the first time, the court has determined that making same-sex behavior illegal is a violation of constitutionally protected and fundamental human rights.
Sex between members of the same gender was criminalized during British colonial rule of India in the mid 19th century and has carried a punishment of up to as many as 10 years in prison.
Gay rights supporters hope that the landmark ruling will be the first in an ongoing series of steps into an era of greater tolerance within the socially conservative nation, with Anjali Gopalan, whose Naz Foundation filed the initial petition that resulted in the ruling, opining that the country was finally entering the 21st century.
“The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone,” the judges wrote in their 105-page decision. “Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized.”
British laws adopted in 1861 had prohibited “carnal intercourse against the order of nature with any man, woman or animal” and became known as Section 377 in the Indian penal code. Although this is the first time that a court has ruled directly on the subject of gay and lesbian rights, detractors have long viewed the law as an outdated remnant of the colonial past. Although few citizens have been prosecuted under Section 377, it has been used to harass, blackmail and jail them.
“It’s the first major step,” Gopalan observed during a press conference in Delhi, adding that “there are many more battles.”
Acceptance for lesbians and gays is limited in more rural areas, although urban areas and even Bollywood have increasingly embraced a diversity of sexual roles and behaviors. Gay men and lesbians frequently enter heterosexual marriages but continue to have same-sex affairs and in deeply rural areas it is not unknown for lesbians to be forced to have sex with men in order to “cure” them of their homosexuality.
While conservative moralists condemned the decision and demanded its reversal, dozens of young men and women celebrated outside of the Naz Foundation news conference hall. Joining them were a group of hijras, men who live as women but claim no gender identity. One 22-year-old celebrant declared the ruling to be “a victory for human rights, not just gay rights,” according to the New York Times.
Given that India has one of the world’s highest rates of AIDS, activists are hopeful that the court’s ruling will serve as a step toward better education concerning safer sex practices and sexual disease prevention.
