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  • Jul 14, 2014
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CommentInsight & Opinion

Indian top court's ruling may galvanise move to change anti-gay law

Amrit Dhillon says the Indian top court's surprise backing for an old law that bans gay sex is a setback for the nation's drive towards modernity

PUBLISHED : Monday, 16 December, 2013, 7:34pm
UPDATED : Tuesday, 17 December, 2013, 1:44am

Indian liberals and gay rights activists reacted with horror when, last Wednesday, the Supreme Court upheld a 19th-century law that criminalises homosexual behaviour.

They had expected the court to endorse a watershed 2009 ruling by the Delhi High Court that the law on homosexuality - dating back to the days of the British Raj and effectively banning gay sex - should not apply to consensual acts. Instead, the Supreme Court upheld the old law. Its ruling was all the more shocking because the court has played a stupendous role in driving India towards modernity with its progressive rulings on issues such as honour killings and dowries.

This time, the court passed the buck to Parliament, saying the law was "constitutionally valid" and so only Parliament could change it.

The reactions to the ruling demonstrated vividly the extreme diversity of opinions found in India today. At the liberal extreme, we have gay rights groups with their "gay pride" marches that are identical to those in the West. In the middle are the bulk of middle-class Indians who are conservative on matters of marriage and sex, preferring to stick to tradition and not caring a great deal about the rights of homosexuals. Then, at the other end of the spectrum are people like yoga celebrity Baba Ramdev, who is a throwback to the Victorian era with his "remedies" for homosexuality.

In its attitudes towards gay rights, adultery, divorce, pre-marital sex, live-in relationships and the like, India is in sync with many other parts of Asia, where social conservatism prevails. Heterosexual marriage and family are seen as the bedrock of society, and any practices that seem to threaten this foundation are frowned upon.

Malaysia, Myanmar, Pakistan, Afghanistan and Singapore all have anti-gay laws. Unlike in the West, in some of these societies, a person's collective identity - as a member of family, community or religion - takes precedence over individual identity. Thus, the exercise of personal freedom is given lower priority. This is also why, for example, a "fallen" woman damages the "honour" of the entire family and community.

In the West, as long as one does not break the law, individuals can generally live as they please.

Moreover, in many Asian countries, it is not just social conservatism that produces a hostile attitude towards homosexuality, but Islam. Throughout the Muslim world, gay rights are not, as a rule, upheld. Indonesia is a notable exception, at least in terms of the law.

Luckily, a push in the right direction may come from the Indian government, which seems to have been as startled at the Supreme Court ruling as gay activists. Catching the popular mood of outrage, the ruling Congress Party rolled out its big guns to say it will change the law.

Certainly, there are others who will back changing the status quo. Novelist Vikram Seth struck a note of defiance when he said: "I wasn't a criminal yesterday but today I certainly am. And I propose to continue being a criminal."

If the government is true to its word, he may be a criminal for only a few more months until the law is changed.

Amrit Dhillon is a freelance writer in India

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