An Indian court has ruled for the first time that consensual gay sex is not a crime, in a breakthrough for Aids campaigners and the country’s largely closeted homosexual community.

Under a British colonial law, introduced by Lord Macaulay in 1860, homosexual intercourse is ranked alongside paedophilia and bestiality as “sex against nature” and punishable by up to ten years in prison.
India is one of the world’s few democracies to still have such a law.

But the Delhi High Court ruled that applying the law — known as Section 377 of the Indian Penal Code — to consenting adults violated the constitution and international human rights conventions.
The ruling is non-binding outside Delhi, and can be appealed at the Supreme Court, but is being hailed nonetheless as a landmark in an increasingly vocal campaign to have Section 377 repealed.

“I’m so excited and I haven’t been able to process the news yet,” said Anjali Gopalan, the executive director of the Naz Foundation (India) Trust, a sexual health organisation that filed the petition. “We have finally entered into the 21st century.”
Naz started the petition in 2001 after police in the northern city of Lucknow raided its offices and detained some of its staff for 47 days on suspicion of running a “gay sex racket”. It argued that Section 377, though seldom used to prosecute people in the past 20 years, was often used by police and others to harass, intimidate and blackmail gay men and women.
The group also said that the law contributed to the spread of HIV/Aids by making it difficult for gay men and women to seek treatment.
Its petition was backed by Voices against 377, a coalition of women’s, children’s and gay rights groups.

It also won support from the National Aids Control Association of India, which is part of the Ministry of Health. But it was opposed by the Home Ministry in the last Government, which argued that changing the law would “open the floodgates of delinquent behaviour”.

Other opponents argued that the law was the only one that could be applied in cases of homosexual child abuse, or male rape. Naz and other activists had hoped that the new Government, which took power in May, might support repealing the law.

P. Chidambaram, the new Home Minister, was reported at the weekend to have proposed a meeting with the two other ministers whose consent for that was required — Law and Health.

Veerappa Moily, the Law Minister, had already said that he favoured a “review” and the Health Ministry, now under Ghulam Nabi Azad, had been calling for its repeal for years.

But Mr Moily and Mr Azad now appear to have changed their positions, and are calling instead for a public debate to establish a consensus on the issue — which could take several more years.

Human Rights Watch and other groups urged the Government not to appeal against the High Court’s ruling and called on the Indian parliament to rewrite Section 377 as soon as possible