Delhi overturns gay sex law, but problems remain
Updated
The Delhi High Court made a breakthrough for gay rights last week, when it ruled that gay sex between consenting adults was not a criminal act.
The ruling overturned a 148-year-old colonial law which describes a same-sex relationship as an "unnatural offence", with homosexual acts punishable by a 10-year prison sentence. Despite the ruling in the capital, India's homosexual men and women still battle prevailing attitudes that same-sex relationships are illegitimate, even though groups have long argued that the law contravened human rights.
Presenter: Sen Lam
Speakers: J.V.R. Prasada Rao, director at UN-AIDS Asia Pacific and a former Secretary of Health in India
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RAO: I think this is a very important ruling by the High Court and I think it sets in motion an irrevocable process of decriminalising some of these behaviours like gay sex. It may not happen overnight, but I think it's an important victory for those who are pleading for this, including activists, lawyers and fighters for the freedom of speech and freedom of expression in India. But I can say that it is not something which is coming immediately. I think there is a long fight ahead and I am sure this will also have its impact in other countries in the region, which are former British colonies.
LAM: You speak of having an impact, but I understand that the law applies only to Delhi?
RAO: Yeah, right now it applies to Delhi, but definitely the other High Court can take their cue from this. They can take cogniscence of this and do the same thing, or otherwise the activists can go to the other courts also. The moment there is a High Court judgement in India, it always sets the trend for other judicial institutions to take notice.
LAM: Are you concerned though that this ruling does not have the support of the Home Ministry, nor it would seem, the Indian Federal Government?
RAO: I think the government was in a bit of a problem to push the legislation, but I think this makes the task of the government easy, because it came through a provisional pronouncement. Nowadays it is easy for the government to move an amendment to the law, because earlier, except for the activists, nobody was speaking of this, but now that the judiciary has expressed support for this move, I think it should become easy for the government to push their legislation.
LAM: So are you saying then that the High Court decision makes it politically more palatable for the government to support such legislation?
RAO: Absolutely, I think you said it.
LAM: But is HIV AIDS in India still a massive health problem in the gay community?
RAO: It is an increasing problem. In fact, you will find the prevalence is much higher, of course it varies from state to state, but much higher among the gay population than in the general population. So it is a matter of great concern and I think these rates are still increasing, even though in some of the provinces in India, the overall prevalence rates are coming down. But I think the rates among the gays as well as the injecting drug-users is going up.
LAM: So even in legal terms, the fact that gay sex amongst consenting adult men is no longer a criminal offence in New Delhi. You think that that in itself will help the battle against HIV AIDS?
RAO: Yeah, I think it is a shot in the arm, for most of us who are engaged in this battle for the last five, six years. Whether we belong to the UN or we belong to the gay activists or from civil society. I think this has given all of us hope to move forward.
LAM: Well, the government earlier said that the to decriminalise homosexual conduct might open the floodgates, and I'm quoting here "delinquent behaviour". Is that a widely held view in India?
RAO: That's what people think, but evidence has shown that is not the case. The same thing is said about condoms. If you propagate the use of condoms, there will be more of licentious behaviour. But these things are just generally-held opinions but never proven facts.
LAM: So generally, it's better to be out, than to drive the gay community underground?
RAO: Yes. I think the most important thing is the access to services which the government is providing under its national programme. That is most important and I think the gay community is not able to access services, mainly because of the criminalised nature of their behaviour and also the deep stigma and discrimination that is associated with this.
