In a landmark judgment, the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution.
A Division Bench of Justice A.P. Shah and Justice S. Muralidhar said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.
As the ruling was made by a high court, it was inevitable that the case would move forward to the Supreme Court. The Supreme Court set February as the month for deliberating on this case. Between that time the hearings had garnered a lot of attention as the legal counsel for the Home Ministry had clearly expressed an anti-gay agenda:
The union home ministry urged the Supreme Court reverse a landmark decision to decriminalise gay sex, saying homosexuality was immoral, “against nature and spreads HIV.” The apex court was hearing more than a dozen petitions filed to overturn a 2009 ruling by a Delhi High Court that made gay sex between consenting adults legal for the first time. The colonial-era ban was judged to be unconstitutional in a decision hailed by gay activists as a victory in their fight for equal rights and opportunities in the world’s biggest democracy. Gay sex “is highly immoral and against the social order,” additional solicitor general P.P. Malhotra, who is representing the home ministry, told the top court. He added that it was “against nature and spreads HIV.”
Religious and conservative groups, such as Hindu yogactivist Baba Ramdev and conservative Muslim groups, filed the petitions against the ruling. They were joined by organizations and ministries that tried to frame the issue as one protecting children from molestation (something easily covered under laws of rape or similar) Several political, social and religious outfits asked the Supreme Court to give the final verdict on the issue. Senior BJP leader B P Singhal, who had opposed legalisation of gay sex, had challenged the verdict in the Supreme Court saying such acts are illegal, immoral and against the ethos of Indian culture. Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance had also opposed the High Court’s verdict. Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal had also opposed the verdict in the apex court.
The health minister, Mr. Azad, made it more than clear what his perspective was at a conference in July 2011: “Unfortunately, this disease, where a man has sex with a man, which is absolutely unnatural and shouldn’t happen but it is happening, is spreading around the world and has also come to India,” said Mr. Azad, speaking in Hindi. “Even in our country the numbers of men having sex with men is significant.” Mr. Azad went to say that these men are hard to locate, and that is a problem for the fight against AIDS. That’s what Naz Foundation, which works on AIDS outreach has been saying too—and it doesn’t think the health minister’s remarks will help.
One of the reasons that these opinions were expressed by politicians and religious leaders was that they do have echo among people in India, however increasingly the acceptance of a gay identity in India had allowed for pride parades and openly gay couples. While, the western concept of this gay identity is indeed an “imported” phenomenon into India, there seemed to be a large amount of evidence that a more fluid concept of gender and acceptability of same-sex love and sexual relationships is something that is traditionally present in cultures in the Indian subcontinent. The idea of same-sex love as something unnatural might well itself be a puritan.. Additionally, there could have been found a large number of people in India who have a desire for partnership with a member of the same sex, but who wouldn’t identify with the gay identity displayed in the pride parades.
“Homophobia, and not homosexuality, is new to Indian culture,” says Vinay Chandran of Bangalore-based charitable trust, Swabhava, which works with gender and sexual minorities in the country. His argument has a sound basis considering homosexual acts have been recorded in ancient Indian writings, including the Kama Sutra, for hundreds of years. Current attitudes towards homosexuality, in part go back to 1860, when India was under British rule. It was then that the infamous Section 377 was introduced into the Indian Penal Code.