By Jerry Pinto
Originally published on Advocate.com August 05 2009 12:00 AM ET
When Anjali Gopalan first filed her petition to end the criminalization of consensual gay sex in New Delhi and the immediate area surrounding the Indian capital, George W. Bush was in his first year in the Oval Office and Slumdog Millionaire wasn't yet a twinkle in director Danny Boyle's eye. But in July the 52-year-old executive director of the nonprofit HIV prevention group Naz Foundation finally tasted victory when the Delhi high court, under Chief Justice Ajit Prakash Shah, ruled that Section 377, a 148-year-old British colonial law, was unconstitutional.
A renowned AIDS activist honored by India's parliament for her work and short-listed for a Nobel Peace Price in 2005, Gopalan filed a petition in 2001 to repeal the law as a matter of public health, not just civil rights: The stigma of gay sex under a state-sanctioned ban discourages safer-sex practices, she argued. That it took eight years for the high court to consider her petition didn't surprise her. "I never thought we would get this far this fast," Gopalan says.
Despite the Delhi decision, the federal ban on gay sex remains in effect. And while high courts outside the National Capital Territory of Delhi aren't bound by the verdict, legal precedents suggest that this ruling likely will influence future cases elsewhere. That, in turn, is mobilizing gay rights opponents. Religious conservatives have implored the nation's supreme court to quash the Delhi ruling. In one appeal, which the court has agreed to hear, Hindu astrologer Sushil Kumar Kaushal wrote, "If such abnormality is permitted, then tomorrow people might seek permission for having sex with animals." Kaushal also argued that decriminalization would facilitate, not hinder, the spread of HIV.
Gopalan, who will be permitted to appear before the supreme court when it weighs Kaushal's petition, isn't deterred. "I was expecting a huge backlash from the religious right wing," she says. "But the judgment has been made on valid grounds and is based on legal arguments. It's difficult to imagine why it would be overturned by the supreme court."