India's gays celebrate too soon

Supreme Court signals it may hear appeal on the recent decriminalization of homosexual sex.

Jason OverdorfJuly 11, 2009 10:56Updated May 30, 2010 12:00

Men kiss during a rally in Mumbai on July 2, 2009, the same day an Indian court ruled that gay sex was not a crime. The Supreme Court has announced that it may consider an appeal. (Arko Datta/Reuters)

NEW DELHI — Just when India's gay and lesbian community thought it was safe to come out of the closet, new moves by religious leaders and conservative politicians have revealed the deep divide between an increasingly liberal elite of the metropolitan cities and a socially conservative mainstream society.

Last week the Delhi High Court made a ruling that decriminalized homosexual sex, which has been against the law here since India's days as a British colony. Delhi's gay community celebrated the decision with brash displays of camp, a legion of house parties and a bash at Pegs & Pints, a local watering hole that holds an unofficial gay night every Thursday.

The celebrations may prove to have been premature. On Thursday, India's Supreme Court signaled that it would consider an appeal of the Delhi court's decision and sent notice to the national government, the city's government and the Naz Foundation, an NGO that had filed the high court case in favor of gay rights.

In taking up the appeal, the highest court is responding to a petition by two private citizens who claimed they were deeply hurt by the judgment “inasmuch as it seriously affects them and fellow countrymen in all spheres of their lives, personal as well as social.”

The petitioners also maintained that the change in the law was likely to result in a rampant increase in homosexuality, arguing, “We have to look at our own scriptures to seek guidance from them and they are against such behavior in our society. If such abnormality is permitted, then tomorrow people might seek permission for having sex with animals.”

Until last week's judgment by the Delhi High Court, which followed eight years of delays and deferments as various judges passed the buck, homosexuals were liable to prosecution under Section 377 of the Indian Penal Code, which prohibits "unnatural offences" or "carnal intercourse against the order of nature."

The penalty for the offense was a prison term of between 10 years and life. And even though consenting adults have almost never faced prosecution, the threat of jail and exposure makes for rampant police abuse, say activists. That not only causes India's estimated 50 million gay men to live in fear, it also hampers the fight against AIDS, as police have been known to intimidate outreach workers.