India decriminalises gay sex, Singapore shown to be a fool

Delhi High Court today ruled Section 377 of the Indian Penal Code (IPC) unconstitutional, effectively legalising homosex between consenting adults.

"We declare section 377 of IPC in so far as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution," the bench comprising Chief Justice A P Shah and Justice S Murlidhar said. Article 21 of the Indian constitution states that every citizen has equal opportunity of life and is equal before law.

Strictly speaking the law was not entirely struck down. It was "read down", that is, its scope was reduced only to situations involving non-consensual sex (other than penile-vaginal rape, which has a separate law covering it) and sex with minors, whether consensual or not. The court clarified that "by adults we mean everyone who is 18 years of age or above".

Elaborating on its reasons, the court said, "In our view, Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.

"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," said the court in its 105-page judgement.

The suit was brought by the Naz Foundation whose chief interest lies in fighting HIV, along with an activist group known as "Voices Against 377". They argued that Section 377 violated the constitutional rights of homosexuals, in that by criminalising and stigmatising homosexual persons, it created a vulnerable class of persons who suffered harassment and stigma, and consequently were either denied, or did not have equal access to preventive attention and medical care. They asked the court to "read down" the law to exclude consensual sex between adults from its ambit. This, the court has agreed with in its judgement.

Section 377 of the Indian Penal Code made an offence of "carnal intercourse against the order of nature", which is taken to mean any kind of sex other than penile-vaginal sex. It provided for up to 10 years' imprisonment.

The government of India defended the law before the court. In hearings last October, India's Solicitor-General P P Malhotra told the court that homosexuality is a disease. "Every citizen has the right to lead a decent and moral life in society and the right would be violated if such behaviour is legalised in the country," he said.

"AIDS is already spreading in the country and if gay sex is legalised then people on the street would start indulging in such practices saying that the High Court has given approval for it.... Legalising it would send a wrong message to our youth."

The week before, Malhotra cited religious doctrine in an attempt to persuade the court, but was instead slammed by the bench for doing so.

With this decision, consensual adult gay sex is now legal in New Delhi. Is it legal in the rest of India? Technically, no. But, as AFP reported in its story, "While the ruling is non-binding outside the Indian capital, lawyers supporting the petition said it set a precedent that effectively decriminalised consensual gay sex nationwide." [AFP. 2 July 2009, India court rules gay sex legal]

However, the government may appeal to the Supreme Court, so it may not yet be final. On the other hand, the government itself may be changng its mind on the matter. At the end of June 2009, a Times of India story said the Law Minister and the new Home Affairs Minister are now in favour of repeal. The Health Ministry had, even last year, been in favour too. According to AFP, "Law Minister Veerappa Moily said last weekend that he would be meeting with his cabinet colleagues from the home and health ministries to review the existing legislation."

Politics, however, can get even more complicated than the law, so what happens next is as yet unclear.

* * * * *

Singapore's Penal Code is based on India's. We too used to have a Section 377 that criminalised "carnal intercourse against the order of nature", which like India's applied to both homosexual and heterosexual relationships, but this was repealed in 2007.

However Singapore has an additional Section of the Penal Code, known as Section 377A which specifically targets gay men, criminalising "gross indecency between two males". The government deliberately let 377A stand in 2007, even when they repealed Section 377. Explaining why, the Singapore government said they wanted to decriminalise oral and anal sex between heterosexual couples, but keep it a criminal offence between gay men. Society was still conservative (i.e. many people didn't know a damn thing about homosexuality and wanted their prejudices enshrined in law), the government said.

In other words, the Singapore government did exactly what the judges in Delhi said was constitutionally wrong - criminal law held captive by popular misconception.

Since India does not have the equivalent of our Section 377A targetting gay men specifically, the reading down of Section 377 was enough to decriminalise homosexuality.

I had been warning for some years now that the world is moving much faster than our uninformed, fundamentalist-Christian-friendly government is able to perceive, that we're going to be left behind as the world moves on. We had an opportunity in 2007 to do a clean revision of the Penal Code, but the government's balls shriveled in the face of religious fundamentalists. Now see where we've ended up? Looking timid, dated and out of touch in the fast-changing eyes of the world.

On the one hand we want the Singapore brand to be progressive, cosmopolitan and state-of-the-art. We boast that on this island there is rule of law and our justice system meets best practice. At the same time, we think the world stands still and refuse to move forward on social equity, so what's the hurry? Now even India, which, socially, is probably a more conservative place than Singapore, and whose justice system we love to laugh at for its inefficiency, has made us look like confused, blinkered, gutless fools.

� Yawning Bread 

Footnotes

None

Addenda

None