“Freaking unbelievable. Absolutely speechless!”
Gay rights activists in India have been posting congratulatory messages on blogs and Twitter ever since the Delhi High Court on Thursday ruled gay sex was not a crime.
human rights.

Some see the ruling as crucial for the country’s battle against HIV/AIDS.

India has the world’s second highest HIV/AIDS caseload and gay advocacy groups say fear of persecution by law enforcement agencies often leaves homosexuals without easy access to health information and preventive care, rendering them more vulnerable to infection.

The gay sex debate and repealing of Section 377 of the Indian Penal Code that makes “unnatural sex” a punishable offence will have wide- ranging implications in the months to come.

But it’s difficult to predict whether conservative Indians would change their perception of the gay community.

India has traditionally been a study in curious contradictions that are deeply interwoven in its social fabric through centuries. If it is embracing and tolerant of alien customs, it is also proud and conservative of its own.

Visitors to the ancient temples of Khajuraho, built in the 10th century, would find homosexual couples immortalised in its stone carvings.

Yet, in the 21st century, gay men and women in India find it hard to come out of the closet in a society that frowns on public display of affection even among heterosexual couples.

While there rarely has been a conviction under section 377 in the last two decades, gay rights activists say it remains a powerful tool in the hands of the police to harass homosexuals.

It also remains to be seen if the territorial jurisdiction of the Delhi High Court will be extended to encompass homosexuals in all Indian states.

The government’s reaction following the court ruling has been cautious.

Analysts say it would need to take the debate forward without antagonising religious sentiments especially those of Christians and Muslims, who are traditionally opposed to homosexuality.

For now, the court ruling will hold unless challenged in the Supreme Court or replaced by an act of Parliament.

The main debate that remains still is to find a common law that allows constitutional rights to gays having consensual sex without letting off paedophiles and same-sex rapists.

But are Indians ready to accept a same-sex couple moving in next door, gay parents at PTA meetings or at social events?

On June 29 of this year, hundreds of gays, lesbians and transsexuals danced and sang on the streets of three Indian cities, hoisting the rainbow flag on the country’s first nationally coordinated gay pride day.

Though they waved slogans such as “gay and loving it”, many still wore masks – afraid to openly campaign against the dreaded Section 377 of the Indian Penal Code, which has banned “unnatural” sex since colonial times.

So where do the protesters find themselves nearly four months later, as gay activists battle a (divided) government to scrap the law, taking the case to the Delhi High Court?

The charges leveled by the government against homosexuals appear to be stacking up. Local media has quoted additional solicitor general P P Malhotra as saying homosexuality is a “social vice”, borne of a “perverse mind”.

It has been called the worst form of indecency, while an MP from an independent party called it an “evil” that has been imported into India from the western world and would change the face of India.

Worse, the government says homosexuality is “a disease” – the spreader of killer HIV/AIDS even as it infects the morality of its victims. Malhotra on Monday painted a gloomy picture indeed of what would happen if Indian homosexuals had their way: “AIDS is already spreading in the country and if gay sex is legalized then people on the street would start indulging in such practices saying that the High Court has given approval for it.”

It would, in the words of Home Minister Shivraj Patil, “open the floodgates for delinquent behaviour” for those same people who danced on the streets of Delhi, Kolkata and Bangalore four months ago.

No longer fearing prison, they would flaunt their vice openly on the streets, as police and decent families stand by, powerless to stop them. If, by the government’s own estimate, just 0.3% of Indians are homosexual, that still leaves around three million people to go on the rampage.

So far, though, the High Court has not been impressed. It has dismissed the government’s evidence when it drew on religious texts, including the bible, to attack homosexuality. On Monday the High Court challenged the Centre to prove how homosexuality was a disease, and earlier cheekily asked whether straight sex should also be banned, given it also spreads AIDS.

The cabinet itself is divided: Prime Minister Manmohan Singh found himself asking two members of his cabinet to make up their very public tiff on the issue. Health Minister Ramadoss has been a strong spokesman for the gay campaign, arguing that pushing homosexuality underground has made it harder, not easier, to stop the spread of AIDS.

The question is, if the law is repealed, will homosexuals feel truly free in India, and how much of a backlash will there be against them? Given the social stigma, those who flaunted their pride secretly in June, might still find it hard to out themselves to friends and family, even if the law says they can.