A former British colony - the Indian High Court sets example.

By Antoine Craigwell

Perhaps, the ruling by the Indian High Court on Jun 2, decriminalizing homosexuality is the beginning of the collapse of colonial era laws against gays in former British colonies. But, when several months ago the Jamaican Prime Minister, Bruce Golding, declared in a BBC interview, that as long as he's Prime Minister, he would have no gays in his Cabinet, he was not only in violation of his country's Constitution, he was subscribing to a colonial era law imposed by the country's former British colonial masters.

 

The High Court in Delhi, India, ruled that being homosexual is not a crime and that the law, Section 337, imposed by the British in 1861 during colonial rule, was itself antithetical to the Indian Constitution. While the High Court ruling, for the moment, applies only to Delhi and the immediate area, there is an expectation that it would spread to the entire country and that, even though appeals by anti-gay elements to the Indian Supreme Court are likely, the next step is repeal of Section 337 by the Indian Parliament, which would not only decriminalize homosexuality, but make it possible for same-sex marriages. Last Sunday, Jun 28, many native New Yorkers, many who came to visit the city, and many people world over, celebrated and commemorated the protests of a group of fed-up, angry men and women - without regard to race and age, but with a common purpose, that of being gay; at the 40th Anniversary of the Stonewall Riots. For those who lived through the persecutions of gays and lesbians pre- and post-1969, this celebration was not only a coming of age, but it was the acknowledgement that with the many burgeoning gay movements and clamor for gay rights worldwide, the consciousness of the peoples of the world is changing, at last emerging from under the remnants of a colonial imperialistic thumb into the light of an awareness and acceptance of each other as humans first, regardless of sexual orientation, race, or class.

Balaji Ravichandran, offering a commentary on the Indian High Court decision in the Jul 2, edition of the Guardian newspapers, wrote: "The importance of this verdict cannot be understated. This is the first time that an Indian court has gone on record to say that sexual minorities are not second-class citizens, and that they cannot be discriminated against…However, for decades, the police and sometimes society at large used the law as an excuse to persecute gay men and women, who were harassed, blackmailed, detained or raped, unable to seek any protection or justice from the law. In addition, the law was also a significant impediment to fighting HIV/Aids among sexual minorities." In another commentary in the same Guardian edition, Anil Bhanot stated that homosexuality is an accepted part of the Hindu religion, the national religion of India: "The ancient Hindu scriptures describe the homosexual condition to be a biological one, and although the scripture gives guidance to parents on how to avoid procreating a homosexual child, it does not condemn the child as unnatural." In ancient Hindu texts, reaching as far back as 2,100 BCE, Bhanot said that the culture recognized homosexuals, accorded them a place as members of the society, and who even had their own Hindu deity, "Mother Goddess Bahuchara, for their spiritual link to the Absolute Brahm."

While the court ruling in India comes as a result of more than ten years of activism by a consortium of human rights and gay advocacy groups, the message to the wider world, especially to those countries where homosexuality is still punishable either by death, by long prison sentences (gay sex criminalized by 10 years imprisonment in India, eight years in Senegal), or government sanctioned or permitted violence, including killing (as in Jamaica, Barbados, Trinidad and Tobago, and Guyana); is simple, the consciousness of the people of the world is changing, the colonial laws are no longer applicable. In their selfish obsession to protect their definition of what is good for humanity, the religious purists continue, in the face of mounting global awareness of the fallibility of their claims against same-sex relationships, to perpetuate their century's old brand of oppression and fear mongering. After the court decision, the BBC in a report filed by its reporter Damian Gramaticas from Delhi spoke with a representative of the Roman Catholic Archdiocese of Delhi who said that the High Court ruling would mean an increase in HIV infections and more acts of pedophilia; claims, which have been disproved by community workers, gays themselves - by the examples of their lives, and countries such as South Africa, which has made same-sex marriage a recognizable civil institution equal to heterosexual marriages in that country's Constitution, that HIV infection rates have declined when people know and feel comfortable with themselves, and that homosexuals are not pedophiles. Even more important is that in India, a country where 2.5 million people are infected with the HIV virus, according to an Associated Press report, rights activists say the law against sex between people of the same gender sanctions discrimination and marginalizes the gay community. Health experts say the law against same sex also discourages safe sex and has been a hurdle in fighting HIV and AIDS. If this court ruling stands, challenges to it are defeated in the Supreme Court and the Parliament repeals Section 337, along with more acceptance than already exists of and protection for gays and lesbians, a law change would be a significant tool in the fight against HIV infection by enabling more safer sex practices, and thereby removing gay sex from the shadows, where contraction of the virus is more prevalent. Another aspect of the ruling for India, as a former British colony, to the other former British colonies with sodomy and buggery laws, such as many, if not all, the countries of the West Indies; that while they hold on to anti-human rights laws, the British had themselves passed laws recognizing and accepting homosexuality in England and Wales since 1969, before many Caribbean countries gained their independence from Britain.

A historical comparison could be drawn between what was enacted in Britain wasn't promulgated to the colonies: slavery was prohibited in England long before it was abolished in the colonies. So the question remains: If in England laws were passed protecting homosexuals, why do former British colonies continue to preserve anti-sodomy and buggery laws, even after their "colonial masters" had seen the light? In the Constitution of many former British colonies, a document intended as the moral compass and guidepost for the protection of its citizenry, there are sections, articles and passages attesting to preserving, maintaining and protecting human rights, with specific mention on civil rights, and racial and sexual discrimination. Jamaica, a former British colony, is the country named in February this year, in a U.S. State Department report, as the most homophobic country in the world, and from reports of people who have fled the country for fear of their personal safety, that the violence meted out either to open or suspected gays and lesbians, finds some basis of sanction from the authorities, especially the police, who appear to condone the often time mob reaction with non-interference. In the Jamaican Constitution there is specific mention addressing the issue of discrimination in Chapter III on Fundamental Rights and Freedoms, Section 13, "Whereas every person in Jamaica is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely-life, liberty, security of the person, the enjoyment of property and the protection of the law; freedom of conscience, of expression and of peaceful assembly and association; and respect for his private and family life…that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest;" and in Section 24, "Subject to the provisions of subsection (6), (7) and (8) of this section, no person shall be treated in a discriminatory manner by any person acting by virtue of any written law or in the performance of the functions of any public office or any public authority; In this section, the expression "discriminatory" means affording different treatment to different persons attributable wholly or mainly to their respective descriptions by race, place of origin, political opinions, colour or creed whereby persons of one such description are subjected to disabilities or restrictions to which persons of another such description are not made subject or are accorded privileges or advantages which are not accorded to persons of another such description."

Another Caribbean country, Guyana, which is also a former British colony, still preserves and enforces its buggery laws. Earlier this year, the Guyana Police Force arrested some men who were on their way to a party dressed in female attire. The ensuing expressions of outrage drew comparisons to a little known and unenforced law which prohibits men from wearing women's clothing, but does not prosecute women for wearing men's clothing. As an example of the violence meted out to gays and the blatant collusion of the country's police, in 1995, Mark Ramos, a 24-year-old man had attended a party in a predominantly East Indian village on the West Bank of Demerara. When he left the party, he was set upon by a gang of young men and severely beaten. Struggling, he made it to the nearest police station to file a complaint, and reports state that he was placed in a holding cell, mocked and beaten by the police, and when near to death was transferred to the main hospital in the country's capital, Georgetown, where he died. But when the Guyana's President, Bharat Jagdeo formed a commission to examine and to submit to Parliament recognizing gay rights and offering protection against discrimination and hate, a religious opposition, led mostly by evangelical Christians, the 21st century neo-fundamental-Christians, have succeeded in stymieing the deliberations of the commission and suppression of the motion to the Parliament. Guyana's Constitution, with language similar to the Jamaican Constitution, in a Chapter and section addressing rights of the individual, Chapter III on Fundamental Rights and Freedoms of the Individual, Section 40, "Every person in Guyana is entitled to the basic right to a happy, creative and productive life, free from hunger, disease, ignorance and want. That right includes the fundamental rights and freedoms of the individual, that is to say, the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely, (a) life, liberty, security of the person and the protection of the law; (b) freedom of conscience, of expression and of assembly and association; and (c) protection for the privacy of his home and other property and from deprivation of property without compensation." Perhaps, the Indian High Court decision, while it specifically relates to the rights of gays and lesbians on the sub-continent, as one of the leading examples of a democracy, has sent out ripples in the pond of anti-sodomy and buggery laws crashing onto the shores of the consciousness of the people of the Caribbean and their governments to effect or begin to discard the empty rhetoric of the religious demagogues with their selfish and insecure agendas that homosexuality destroys the social fabric; to ensure that all their citizens do enjoy a quality the quality of life guaranteed by their respective Constitutions. Perhaps, the decision of the Indian High Court would galvanize the peoples of the Caribbean to demand adherence to the precepts of their country's Constitution which have become the bedrock and on which their society is founded and not the antiquated laws of a bygone era.