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New Delhi Lifts Colonial-Era Ban on Gay Sex

By Emily Wax and Ria Sen
Washington Post Foreign Service
Friday, July 3, 2009

A top court in the Indian capital of New Delhi yesterday overturned a colonial-era law banning gay sex between consenting adults as the world's biggest democracy struggles to balance tradition and modernity.

In a strongly worded statement, New Delhi's High Court ruled that the 150-year-old statute prohibiting homosexual acts was discriminatory and therefore a "violation of fundamental rights."

"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 court said in a 105-page judgment.

Quoting India's first prime minister, Jawaharlal Nehru, Chief Justice A.P. Shah said that although "words are magic things often enough, even the magic of words sometimes cannot convey magic of human spirit and of a nation's passion."

The ruling applies only to New Delhi and to adults older than 18. But it is likely to influence courts and elected officials across the nation. Federal government ministers are also reviewing the law.

Activists hailed the decision as a victory for human rights.

"I am so proud of India. The ruling was made in the most exquisite terms of equality, of dignity, of privacy and of respect for all human rights," said Sumith Baudh, a member of Voices Against 377, a coalition of advocacy groups. "We know this will translate for the lives of many Indians into creating more tolerance, fighting harassment, isolation and depression they have long suffered."

Acceptance of homosexuality has grown in urban India over the past two years. Many Bollywood films touch on gay themes, and gay pride parades draw thousands of people, especially youths. But Hindu, Muslim and Christian leaders were quick to denounce the court's ruling in this deeply religious country bound by centuries-old traditions.

Kamal Farooqi of the All India Muslim Personal Law Board called it "a sad day for civilized society," adding: "They are spoiling the future generations. It's un-Indian."

Babu Joseph, spokesman for the Catholic Bishops Conference of India, said in a statement that "while respecting the judgment of the court, we still hold that homosexuality is not an acceptable behaviour in society."

Others have argued that the law was a holdover from British times and that Hindu scripture includes flattering references to gay and lesbian sex as a natural joy of the human experience.

"Most of the world's sodomy laws are relics of colonialism," said Scott Long, director of the Lesbian, Gay, Bisexual and Transgender Rights Program at Human Rights Watch. "As the world's largest democracy, India has shown the way for other countries to rid themselves of these repressive burdens."

By the afternoon, hundreds of gay leaders and supporters celebrated in downtown New Delhi, singing songs from popular Hindi movies about brotherhood, love and friendship. Some wept, while others danced near stoic-looking police.

"For so long, gay people had had to hide behind masks," said Pramada Menon, a lesbian and activist. "We have had to lead double lives. This was a monumental moment in history. It was amazing."

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