Box Turtle Bulletin

Times of India: Delhi Court Ruling Legalizing Homosexuality Binding Nationwide

The Times of India answers the question of whether the Delhi High Court ruling which “read down” Section 377 of the India Penal Code is binding nationwide:

Since a high court has a limited territorial jurisdiction, is homosexuality decriminalized only in Delhi or the whole country? Although legal pundits are divided on this, the law laid down by a 2004 SC judgment implies that homosexuals across the country may rest assured that they too are entitled to the benefits of the historic Delhi high court decision on Section 377 IPC.

In Kusum Ingots vs Union of India, a three-judge bench of the Supreme Court had ruled: “An order passed on writ petition questioning the constitutionality of a Parliamentary Act, whether interim or final, will have effect throughout the territory of India subject of course to the applicability of the Act.”

Thursday’s Delhi High Court ruling touches on the constitutionality of an Act of Parliament in effect throughout the country like the one stuck down in Kusum Ingots vs Union of India, The Times concludes that this ruling is also binding nationwide. This makes the impact of this ruling staggering. With a population of over one billion people, seventeen percent of the world’s gays and lesbians have now been legalized in one fell swoop.

The case is expected to be appealed to India’s Supreme Court. Also according to The Times of India, the India government now appears unlikely to challenge the ruling to the Supreme Court.

[Hat tip: Rex Wockner]

Delhi High Court: Homosexuality Is Not A Crime

Marchers at Delhi Pride Parade, 2008 (Sonali Gulati/Wockner News)

It appears that about seventeen percent of the world’s population of gay people are about to become legal. The Delhi High Cort “read down” section 377 of the Indian Penal Code, striking India’s law which criminalizes sex between consenting adults of the same gender. The court ruled that the law is a violation of fundamental human rights:

A bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The court said that this judgement will hold till Parliament chooses to amend the law.

“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,” the bench said in its 105-page judgement.

This ruling, which is being hailed as “India’s Stonewall” by India’s LGBT advocates, appears to be legally binding only in the Union Territory of Delhi over which the Delhi High Court has jurisdiction. But it is expected to become an important precedent for the rest of the country. It is also expected that opponents will appeal the ruling to the Supreme Court.

The ruling overturns a 148-year-old colonial law left over from the British Raj. Homosexual acts were punishable with a ten year prison sentence.

Council for Global Equality’s Top Ten List “Where The U.S. Should Do More”

Here is something that escaped our notice until now. The Council for Global Equality, in responding to the U.S. State Department’s annual human rights reports, has identified what it calls the “Top Ten Opportunities for the U.S. to Respond” to anti-LGBT human rights abuses which are highlighted in the report. The countries identified by the Council include Egypt, Gambia, Honduras, India, Jamaica, Kuwait, Kyrgyz Republic, Lithuania, Nigeria, and Uganda.

The ten countries weren’t necessarily selected because they are the worst countries in the world for LGBT abuses. Instead, they are identified as the ten countries in which the U.S. has the best opportunity to influence change through diplomatic, political and economic leverage. The details for each country are found at the Council’s web site (PDF: 140KB/8 pages) Here is a rundown for each country targeted by the Council, along with the Council’s recommendations:

1. Egypt: arrests, beatings and imprisonment of men suspected of being HIV-positive. Egypt is the third largest recipient of foreign AID. “Our partnership with Egypt should extend beyond the Middle East peace process: it should require a broad commitment to human rights that includes the rights of LGBT men and women.
2. Gambia: President Yahya Jammeh threatened to “cut off the head” of any homosexual in his country. “We should explore using USAID funds to support programs that encourage tolerance, respect for diversity, and a genuine commitment to civil society”
3. Honduras: Identified as “one of the worst violators of gay and transgender human rights in 2008.” Police routinely round up LGBT youths without cause and Honduran security officials reportedly condone assaults and rapes on gay detainees. Multiple murders were reported, including a leading transgender rights activist. “The U.S. Embassy should offer visible support to LGBT leaders in the country, and should press for accountability within the Honduran government. It should work with Honduran authorities to offer tolerance and diversity training for police and other security forces that are suspected of complicity in human rights abuse. It also should press for a prompt and thorough investigation of the murders and other incidents noted above.”
4. India: Police often commit crimes against LGBT people, and officials in Bangalore ordered the arrest of transgender people. “Given our increasingly close relationship with India, we should express frank concern to the Indian Government over LGBT violence and discrimination.”
5. Jamaica: There have been numerous anti-gay mob attacks, sometimes with direct police complicity. Some attacks have resulted in murder. Homes were firebombed, and one individual was hacked to death by a machete. LGBT advocates continue to be murdered, beaten and threatened, driving some into exile. Police have been criticized in many instances for failing to respond. “Senior U.S. officials should urge Jamaica\’s Prime Minister to show leadership by condemning this violence and instituting measures to bring these and any future perpetrators to justice. U.S. police assistance should be targeted toward programs that promote tolerance and the defense of vulnerable groups against mob violence.”
6. Kuwait: Abuses against transgender individuals were cited. “Individual liberties are at the heart of our democracy, and are critical to the development of deep-seated relationships with like-minded friends and allies. We need to encourage this understanding with Kuwaiti and other authorities as part of our dialogue on human rights.”
7. Kyrgyz Republic: The report notes “a pattern of beatings, forced marriages, and physical and psychological abuse in the Kyrgyz Republic against lesbian and bisexual women and transgender men.” The Council notes that Kyrgyzstan receives significant foreign assistance. “if Kyrgyz officials are unwilling to address the problem, we should reevaluate our assistance levels and other bilateral programs.
8. Lithuania: Political leaders have embraced anti-gay policies and have denied LGBT groups the right to assemble peacefully. “Freedoms of assembly and of association are fundamental rights in any democracy. If Lithuania is to claim its place as a democratic state, it must be challenged to honor these principles in law and in practice.”
9. Nigeria: Adults convicted of homosexuality are subject to stoning in parts of the country that have adopted Shari’a law. LGBT advocates have been threatened, stoned, and beaten. A proposed law pending in Nigeria’s Senate would not only ban same-sex marriage, but any “coming together of persons of the same sex with the purpose of living together …. for other purposes of same sexual relationship.” This would open the doors of arrest for those who are legally married outside of Nigeria and who happen to travel to that country for business or vacation. “We hope it [the U.S. Embassy] will work with European and other embassies in Abuja to voice strong concerns over this dangerous new bill in the Nigerian Senate.”
10. Uganda: Homosexuality is criminalized. Police arrested members of an NGO for taking a public stand against discrimination, as well as three LGBT activist at an HIV/AIDS conference. “Uganda is one of the largest recipients of PEPFAR funding for HIV/AIDS care, prevention and treatment. In Uganda, the money has been used to empower institutions and activists that have led homophobic campaigns in the country. We need to consider whether the US government\’s priority focus on abstinence funding is blunting the effectiveness of the money we\’re spending, while also discouraging tolerance-based response to the epidemic.”

Writing on behalf of the council, Mark Bromley highlighted Egypt and Jamaica for special concern:

Egypt was our third largest recipient of foreign aid from USAID and the State Department last year.  I would not suggest cutting off U.S. assistance in a country like Egypt, but I am convinced that our funding should give us more leverage to speak out forcefully against the HIV arrests documented in the report.

… The U.S. government’s diplomatic response to these abuses must be strong and unconditional, and it should also be tied to our financial commitments in the country. Jamaica is a country where carefully-targeted U.S. support to gay rights or human rights groups could be effective in improving both the legal and community responses to LGBT violence.  In addition, we should use the foreign assistance funding that we have allocated over the past several years to professionalize the Jamaican police force to help respond to these attacks.

Tragedy In Mumbai

It appears that this is India’s 9/11. Whenever news of this magnitude breaks, I prefer to go to the source. During the first Gulf War, I bought a shortwave radio and listened to broadcasts from the Middle East. During the subway attacks in London, we watched live coverage from London via BBC America. Now, my partner is watching CNN and MSNBC, but I’m impressed with some of the coverage available via streaming video direct from Indian broadcasters.

The most polished and professional coverage appears to be from India’s NDTV, which offers live streaming via the internet. They’ve been breaking developments long before CNN. NDTV however, focused their coverage at the Taj Hotel. To learn more about what’s happening at the Oberoi Hotel or the Jewish community center at Nariman House, IBN has provided better live coverage.

Both networks’ coverage is impressive.  IBN, CNN’s affiliate, was talking about Nariam House several hours before American broadcasters noticed that the Jewish center was targeted. And NDTV broke the story of the inflatable Zodiacs the militants used to storm the gate in front of the Taj, again several hours before the American networks. They’re both doing a good job, but of the two networks, IBN is less polished and much more excitable.

And it’s that excitability which concerns me. The first twenty-four hours were characterized by shock. But now, it’s turning to anger — anger at the attackers, and anger at the government, which observers charge hasn’t “learned the lessons of 1993.” That’s when thirteen bombs exploded around Mumbai, killing 250 and injuring 700 more. India has a sizable Muslim population. Will they become targets of that anger? What about Pakistan? This is an extremely volatile situation.

As we go about our Thanksgiving dinners and traditions, and as we reflect on the many things we are thankful for in 2008, please pause a moment to remember the people of Mumbai.

Indian Lesbian Couple Forcibly Separated

In the midst of our battles to obtain and retain such measures of equality and control over our own lives as we can, we should not forget that for others this battle is far more difficult.

Take, for example, Tanusree and Rinku. They had eloped and were living together as spouses (with Rinku disguised as a man) until police captured them and returned them to their parents. Now they are being forcibly detained.

Despite the fact that parents of both girls had accepted the duo as married partners in the district court where police had produced them, they decided to forcibly separate the two immediately thereafter. The two girls vehemently protested, but in vain. While Tanusree was taken to Gabberia, Rinku was taken by her brothers to their parental home in Manikpir, Nayachak, about 5 km away.

“No matter what we said that day on record, we cannot accept such an evil alliance. Have you ever heard of a girl marrying another girl? Someone might have cast a spell on Tanusree and we have managed to wrest her back from there,” said father Kanai Manna. Ever since the pucca road to Domjur was laid near the village, claiming his grocery shop like many others of the village, Kanai idles away at home, while his three unmarried daughters run the household by doing zari embroidery. “We were desperate to get Tanusree back, not only because she is our daughter but also because she is a key breadwinner for us. I am perennially ill and cannot work. I cannot afford to let go of the Rs 2,000 that she earns,” Kanai says.

Indian Pride

Gay pride made its presence known in Calcutta, Bangalore and New Delhi today (AP).

While small groups have marched in the eastern city of Calcutta in recent years, Sunday’s events were the first gay pride parades in Bangalore and New Delhi. Several hundred people turned out at each of the three events.

The marches came days before the Delhi High Court is expected to hear arguments on overturning a law against homosexual sex that dates to the British colonial era.

An Indian Prince Comes Out

It’s not unusual for a son or daughter to be disowned by his or her familiy after disclosing their sexual orientation. But it’s almost unprecedented among royalty — because royalty almost never “comes out.” There’s typically far too much at stake to allow such a bold step, but that may be changing.

Prince Manvendra Singh Gohil, who is from one of India’s richest royal families that ruled the former Rajpipla principality in the western state of Gujarat, was disowned by his family after he publicly announced that he is gay. While princely kingdoms were abolished when India declared its independence, many royal families continue to enjoy tremendous wealth and influence.

Prince Manvendra responded, “I will not stake my claim to the property. I have found a family in the (gay) community and am happy working for the community. … As an activist, I thought it right to come out of the closet first. Otherwise, it would have been living a lie.”

Prince Manvendra runs Lakshya Trust, an organization working with Indian gays with HIV/AIDS. That work is complicated by the fact that homosexuality is banned in India, where it is punishable by up to ten years in prison.