it ruled that a ban on gay sex between adults violates India's constitution

Indian cabinet could report next week on legalisation of gay sex

The Indian government could give its official response to a court ruling that decriminalised homosexual acts as early as next week.

Home Minister P Chidambaram told reporters yesterday that a decision will be announced soon.

"The Cabinet has been requested to formulate its views," he said.

"When the Cabinet takes a decision, it will be announced."

Three Cabinet ministers were asked to consider the ruling by Delhi High Court.

In July it ruled that a ban on gay sex between adults violates India's constitution.

Section 377 was enacted in 1860 under the British Raj, in line with the anti-sodomy laws in England at the time.

It punishes anyone who "voluntarily has carnal intercourse against the order of nature with any man, woman or animal" by imprisonment and criminalises a whole range of sexual acts from mutual masturbation, to fellatio and anal sex.

Chief Justice A P Shah and Justice S Muralidahr said the ban violated fundamental human rights.

The ruling said: "In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21.

"Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution.

"As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution."

The decision was made in response to a case filed by Naz Foundation India. The ruling can still be opposed by the government.

The health ministry has called for the ban to be scrapped, saying it hampered efforts to fight the spread of HIV/AIDS in the country.

However, the home ministry opposed the move, saying that gay sex is the product of "a perverse mind."

IN THE HIGH COURT OF DELHI AT NEW DELHI

Indian court decriminalizes gay sex

Indian court decriminalizes gay sex

Activists herald new wave of HIV prevention
Toronto HIV/AIDS outreach workers say India's Jul 2 ruling to decriminalize gay sex will have positive effects on HIV/AIDS prevention work in a country ravaged by high HIV infection rates.

Devan Nambiar, a Toronto-based educator and consultant who does regular HIV prevention work in India, says the ruling will allow outreach workers there to promote safer-sex more publicly without facing criminal prosecution. He says that, prior the ruling, prevention workers risked jail time for distributing condoms and prevention literature to men who have sex with men.

"HIV/AIDS prevention is hidden," he says. "You have to negotiate with local communities about distributing protection. You have to let police know that you're an [outreach] worker, not selling sex. Otherwise you could be arrested. It wasn't used a lot, but it was always hanging over your head."

The court ruling, the first of its kind in India, states that treating consensual gay sex as a crime is a violation of fundamental human rights protected under Indian constitution.

The move comes nearly eight years after the Naz Foundation (India) Trust, a New Delhi-based HIV/AIDS organization, filed a petition to amend India's sex laws. Prior to the amendment, gay sex was punishable by up to 10 years in prison.

"I'm so excited, I haven't been able to process the news yet," Anjali Gopalan, executive director of the Naz Foundation (India) Trust, told the Associated Press. "We've finally entered the 21st century."

Gay activists in Toronto view India's decision as a major step forward for queer people in developing countries.

"India is a democracy. To have them do something of this caliber is a big thing for a lot of South Asian communities," says Rahim Thawer, men's outreach coordinator for the Toronto-based Alliance for South Asian AIDS Prevention.

Thawer says it will take a long time to change the social stigma around homosexuality in India but that the ruling "sets up a framework" that will "make it easier for safe-sex discussion to take place."

El-Farouk Khaki, a Toronto immigration lawyer, politician and human rights activist, says the ruling gives gay men a new sense of legal protection. Khaki says the law was commonly used as an intimidation tool, either to blackmail or sexually abuse potential offenders. Prior to the ruling, if a person was gay bashed they could be afraid to report the incident to police for fear that they would "be arrested and charged" under the anti-sodomy law, says Khaki.

Khaki says he remains skeptical about how decriminalization will fit into the context of Indian culture.

"Often anti-sodomy laws are removed from the books but that does not mean the everyday human rights situation for the average person has changed," he explains. "The cops that used the law to abuse people are still the same cops."

Being openly gay in India is still largely taboo. In a culture heavily influenced by religion and family honour, gay people often repress their sexualities or live double lives.

"There's a public face and a private face," says Khaki. "People will come out to their families, and families will tolerate it, but they won't tell anyone else.... Sometimes same-sex marriage is tolerated and accepted as long as people are also in heterosexual marriages."

Nambiar says the choice to come out in India sometimes depends on socio-economic status.

"Middle and upper class gays are much more comfortable coming out," he says. "If you're below it's more challenging due to the lack of education."

And "coming out" as "gay," as we in the West would say, isn't always the goal. In India, many men who have sex with men don't bother with identity labels, says Nambiar.

"In Western culture gay men are piped into being a top, a bottom, a butch, a femme," says Nambiar. "In India it's more like, 'I'm a man, I like you, end of story'.... I find it liberating to be gay in India."

Many religious groups are expected to pressure India's ministries and courts to reverse its decision to decriminalize gay sex.

The ruling "is dangerous and harmful for Indian society," Uzma Nahid, member of an Islamic law board, told the LA Times.

Nahid promised to join Christian and Hindu groups in fighting the ruling, the newspaper reported. Such an appeal would be made to India's supreme court.

The ruling was celebrated in cities across the India but Thawer says there is a small chance, if the religious right pushes hard enough, that the anti-sodomy laws could be reinstated.

"The lawmakers and a lot of academics would counter the argument," says Thawer. "The state would have to recognize that while some find homosexuality immoral, people would have to look at the true spirit of equality. Not to ask what makes everyone happy, but to do what is right."

India becomes the 127th country to decriminalize gay sex. Anti-sodomy laws remain on the books in 18 Asian and Pacific, 17 African, and 13 Caribbean countries and colonies, reports Human Rights Watch, a New York based human rights organization.

‘Dealing with’ the Hijra Problem >Pakistan’s Undesirables:

Pakistan’s supreme court recently ruled that all hijras, the Urdu catch-all term for its transvestite, transgender and eunuch community, will be registered by the government as part of a survey that aims to integrate them further into society. The ruling followed a petition by Islamic jurist Dr Mohammad Aslam Khaki, who said the purpose was to “save them from a life of shame”.

Khaki’s petition was prompted by a police raid on a hijra colony in Taxila, an ancient city filled with some of the oldest Buddhist ruins in Pakistan. Two of the three judges on the bench that ruled in favour if the hijra petition, chief justice Iftikhar Muhammad Chaudhry and Ijaz Ahmad Chaudhry, were under house arrest for the better part of the past three years. This, coupled with the clobbering the police gave the lawyers during their demonstrations against the suspension of the judiciary in 2007, makes it easy to regard the hijra ruling as being directed against the police.

Outside the affluent areas of Lahore, police are known to arrest and shake down members of the urban working and begging classes; and many police working at busy intersections have bad relations with the “genderqueer“.

But that doesn’t mean the current judiciary stands for greater gender equity either. Last May, one of the judges that also sat on the bench for the hijra ruling, Ijaz Chaudhry, banned the popular songstress Naseebo Lal from being played on the radio for singing vulgar songs.

Still, the ruling has brought hijras further into the public eye. They held their first protest outside the Lahore Press Club a week after the ruling. On 26 June, hundreds from around Pakistan gathered outside the club holding up placards with the verse “Who am I?” by Punjab’s most beloved poet, Bulleh Shah. The gathering was to laud the colossal effort it must have taken for the supreme court to acknowledge their existence, and to hopefully inform the public about the impoverished, and desperate conditions that they live in.

Boys who grow up genderqueer in Pakistan are often abandoned by families and left to fend for themselves during early adolescence. Most hijra colonies could be described as matriarchies, with a clear leader, referred to as the guru. Some hijras remain on the colonies, others go out to dance, collect alms or entertain city dwellers for money, which is given to the guru who ensures their food and lodging. There are other boys, referred to as pakhi was (gypsies), who live on the banks of the Ravi river in tent colonies and also dress up as women to earn money singing and dancing in public. But pakhi was dress like this to earn more money and attention, not because of their sexuality.

In a culture with strict gender codes, those who bend the rules choose to dress as hijras for many reasons. The government survey will have to decided whether or not to recognise the distinctions between hijras, street performers and even prostitutes.

This survey is also likely to be lacklustre in its execution. Previous government attempts to survey or register the working and begging classes have been ineffectual, at best. After securing a 150 rupee daily wage for labourers, the labour secretary in Lahore admitted that only a fraction of the labourers working in the city were registered. Despite a so-called guarantee by the government to keep the poor from starving to death, people are still starving to death. Without a real follow-through on the part of local districts of major cities and towns, any government surveys will remain unhelpful.

The move to recognise hijras has perhaps been part of a spillover from India’s efforts to recognise its own hijras following a stunt last April when three hijras applied to run for office to raise awareness about the “third sex issue”. As a result, hijras can now give their gender as “E” for eunuch on their passports and government forms.

One thing is for sure, though. To change the attitude towards sexuality and gender in the country, it will take much more than rulings by the courts, or surveys by the government. (Source)

1. i met a hijra a few days back while i was waiting for my mom outside a shopping center. i had no money hand in and he started talking to me. he told me that he had been looking for a job for so long but no one was willing to have him as an employee cuz everyone thought that having him as an employee would bring shame to them and would damage their business. it was quite saddening.

   Comment by Leena S. — July 19, 2009 #

   Reply
2. 

   No mercy for these jali hijras.

   Comment by Alam — July 19, 2009 #

   Reply
3. 

   Thank God! Poor people.

   Comment by Achelois — July 20, 2009 #

   Reply
4. 

   It’s true that many,including me,don’t feel comfortable being around hijras but that doesn’t mean they should be shamed and starved.Hoepfully life will improve for them.

   Comment by Lat — July 20, 2009 #

   Reply
5. 

   How do they do it in other countries?

   Comment by Tauqeer — July 22, 2009 #

   Reply
6. 

   Just noticed the hand of the guy in black. There are definitely some malformations in these poor people

   Comment by Achelois — July 24, 2009 #

   Reply
7. 

   at least something good can come out of this.

   Comment by Haleem — August 8, 2009 #

   Reply

Dead Sea - A Living Lesson for Homosexuals > GAY EXECUTIONS <

Married in Public GAY in Private ?

Married Gay Men and their social implications

Ashok Row Kavi ,Thursday, August 13, 2009, (New Delhi)

One of the most common problems I've faced as a community counselor is of married gay men and their issues. I still remember a young married man who wished to know how to "balance" his life with a wife at home and a male lover in the army, of all things. The issues got sticky as the army lover wanted to come and meet him at home now knowing that along with the parents he would end up meeting his "stepwife" (suatan in Hindi).

In a very forgettable instance, I remember a young man planning to marry a woman knowing full well that he would not meet his conjugal obligations. The idea behind the marriage was to grab an apartment offered by his employer at a throwaway prize for only their married employees. The plan was to divorce the hapless woman after a year and get in his gay lover to live-in an ever-so-happy pink future. When I pointed out that a divorce might mean the wife getting the apartment besodes alimony payments, he asked me about pre-nuptial contracts. When I said they were illegal everywhere in the Union of India except in Goa, he huffed out of the office and never returned, till eight years after he walked in a bitter man very sick with AIDS related complications.

The sad stories are still continuing and seem to provide an endless drama of sorrow and tragedy. My community based group, the Humsafar Trust, does what are called "tracking interventions" every 18 months. These are structured questionnaires which are answered by random men in sex sites through what are called "time-location- clustering", a social marketing techniques to get some credible information about any population.

What came about was startling. Around 50 to 55 per cent of men-who-had-sex-with-men (MSM) were mostly also having sex with women, Of these around 25 to 30 per cent were heterosexually married to women. Besides, all these bisexual men were having two female partners on an average every month and on an average these men were also having sex with between 5 and 7 male partners a month. In other words, there was a huge bridge MSM population that was having sex with both men and women.

Now just suppose that the HIV or STI prevalence among exclusive gay men was a high 20 per cent. This "high pressure zone" was the tank from which HIV and STIs "flowed across the bridge of bisexual men into the female population. That being the case, the government's HIV prevention programs had to be made more integrated by asking MSM to use condoms with both men and women. Besides, the female partners, the wives of MSM also had to be treated for STIs to prevent what was called "the ping pong effect".

In this, if the man alone went for treatment without getting his wife also treated, she might re-infect him even if he did not have sex outside marriage with men or women. The NACO's programs in Phase III of the National AIDS Control Program (NACP III) finally got on board the wives and female partners of MSM. However, it is the social implications of gay men married to women that will become more obvious as the days go by.

Men get married not only to reproduce and have stable social relationships but also for inheritance and familial stability. I many joint and extended families, young men do not get powers of attorneys in family business' till they are married and become "responsible house-holders". The imperative to marry is sometimes greater on men than women despite the fact that a single woman is more stigmatized than a bachelor.

However, as Section 377 is read down and society "unravels" into liberal globalised economies, things will rapidly change. It is not un-common to see parents now groping with young men who bring him their foreign male spouses to introduce them to parents. Also men living as "single" gay men in other cities cities also feel they have more space to have relations with both sexes without being hauled over to be forced into "arranged marriages".

Whatever it may be, the future will be fraught with a lot more social heartbreak, need or counseling and "upstream marriage services" before the dust settles after the re-interpretation of Section 377. The main goal though should be a mentally and physically healthier society, never mind the ranting and raving of the loony Right wing forces..

Section 377: Cabinet to take final call on govt stand

Section 377: Cabinet to take final call on govt stand
NEW DELHI: The Union Cabinet will take a final call on decriminalising homosexuality as a ministerial panel set up to formulate the government’s response to Delhi high court legalising gay sex decided to put the matter before it as early as possible.

Sources said the law ministry would prepare a detailed note — explaining the HC ruling — for the Cabinet which will decide the government stand when the matter comes up before the Supreme Court on September 14. The three-member panel of law minister Veerappa Moily, home minister P Chidambaram and health minister Ghulam Nabi Azad met on Tuesday and “critically analysed” the pros and cons of the HC judgment.

“We have analysed the judgment with full objectivity — what the judgment had said and what it had not said. Section 377 was not sought to be abrogated. Section 377 remains. The only question is decriminalisation of private consensual sex between two adults,” Moily told reporters after the meeting.

He said the ministers were of the opinion that the matter would have to be presented before the Union Cabinet.

The SC, while hearing a PIL on the matter, had asked the government to present its stand on the issue and posted the matter for September 14. “So, having analysed the judgment, we are placing it before the Cabinet and will ask the Cabinet to take a decision,” Chidambaram said.

He said the HC had read down Section 377 in a manner that it was consistent with Article 14, 15 and 21 of the Constitution. Chidambaram said there was a lot of misinformation about what the HC judgment had held. “One example is that the judgment has struck down Section 377, that is not correct,” he said. This was the second meeting of the three ministers, Moily said, adding, “We have not given any value judgment on the ruling.”

Law secretary T K Vishwanath briefed the ministers on the issue in the meeting.

The SC had on July 20 declined to pass an interim order to stay the HC verdict. The apex court said it would wait for the government to come out with a definite stand on the issue.