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When will gays win their rights? December 10, 2008

Posted by nitinkarani in English, Section 377, Times of India.

From The Times of India:

When will gays win their rights?

9 Dec 2008, 0000 hrs IST, PRATHIBHA JOY , TNN


Over the past several months, several arguments have been made in the Delhi HC for and against the repeal of the archaic Section 377 of the Indian penal Code

The section calls for up to life in prison for “carnal intercourse against the order of nature”. And now, with all hearings concluded — including the centre’s counsel, Additional Solicitor General (ASG) PP Malhotra’s statement that the judiciary had no right to legalise gay sex — it’s time for a verdict.

In the months leading up to the verdict — for which a date has not been set yet — the home ministry has fought fiercely to keep the law intact, even as the health ministry called for a more progressive approach in dealing with the issue.

And though ASG Malhotra stated that the court is not the authority to decide what should be the law and that that function rests with parliament, gay rights activists have not lost faith in the power of the judiciary.

“In India, the Constitution is supreme. The government may think it is supreme too, but it has to stay true to and work within the parameters of the Constitution. In the present scenario, we’re looking at a law that violates fundamental rights like the right to equality, right to live with dignity and right to freedom of expression. And we are building the case based on the violations. ASG Malhotra’s argument questioning the power of the judiciary to legalise gay sex doesn’t hold water, because the court has the right to adjudicate if a law is constitutional or not,” avers gay rights activist Arvind Narrain of the Alternative Law Forum, who doesn’t think the centre’s arguments will be a setback to the pro-homosexuality movement.

Activist Ashok Row Kavi of the Humsafar Trust wasn’t surprised hearing the centre’s argument, “This is a country where it’s mandatory to reveal who your sexual partner is to undergo an HIV test. The home ministry is bent on opposing the repeal of Section 377, but we believe the court can do anything, including eliminating a rule that violates fundamental rights.”

But whatever the outcome of the court hearing, activist Vinay Chandran believes it would just be one step in the battle against homophobia. “The statements made in court on behalf of the government are ploys to stall for time or to ensure the judiciary doesn’t respond to it and put the whole issue on the backburner. But this isn’t the end of the battle. It won’t free us of homophobia. Those are battles that have to be fought continuously,” he remarks.

But what activists are hoping for is that the courts put the citizen at the forefront of its decision. “We hope that a decision will be taken after looking at the case in terms of its effect on fundamental rights,” adds Arvind.



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