In a strange turn of events, it would appear that the courts in New Dehli, India, are now defending the sexual freedom of its people.

According to the ‘Indian Express,’ in July 2009, The High Court in New Dehli had interpreted Section 377 of the Indian Penal code, classing ‘unnatural offences’ to include ‘forcible sexual intercourse’ and ‘paedophilia.’ Furthermore, it reports that The Supreme Court is now hearing public petitions against that decision.

A strong distinction was made between the categories “unnatural” and “abnormal” —

“...while gay sex might not fit into certain conventional norms, it does not trespass on any natural order.” [[1]]

In an effort to align Indian Law with the world, The Supreme Court is really making the effort by scrutinizing and unpacking complex categories like “unnatural” and “abnormal”.

The court also looked at ‘surrogacy’ questioning its grounds for the complex question of what is normal and what is not. This will be a significant victory in the Global fight against homophobia, not only for Indians but for justice at large. [[2]]

The ‘Indian Express’ further reports:

“ The Section 377 set of laws was part of the Christian idea that sex for its own sake takes us away from God, that “carnal intercourse against the order of nature” (meaning procreation) must be punishable. And so, rape, bestiality and consensual sex between LGBT adults, oral sex were all judged equally.” [[3]]

What this basically translates to is that citizens who were marginalized based of sexual orientation or gender were subjected to harassment, forced to hide or live double lives leaving little/no room to engage with health issues like HIV/AIDS in a public forum.

With reference to section 377 of the penal code, the Indian Express also reported that, on Thursday, 16 February 2012, The Supreme Court had questioned the basis/grounds on which homosexual acts could be considered "against the order of nature.”

Justice G. S. Singhvi and Justice S. J. Mukhopadhaya argued the point that with the enactment of the Indian Penal Code in 1860, if homosexuality only became an offence then, it was clearly not an offence before that.

Furthermore, the article quotes Justice Mukhopadhaya as stating:

"How do you say that this is unnatural?.. It was not an offence in 1859 or 1857." [[4]]

Petitions that are currently being heard are challenging a Delhi High Court order decriminalising homosexual acts among consenting adults. The point that was being argued was that Section 377 had to Human Rights centred as these rights were guaranteed under the Constitution.

In South Africa, section 9 of the Constitution that is entitled "Equality", states that:

"The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language and birth." [[5]]

In other words, the rights of those who are marginalised based on sexual orientation and gender are protected specifically due to “sexual orientation” being included as one of the grounds on which unfair discrimination may not take place.

This forms the backbone for the vision of The Inner Circle which is to transform society into one that is inter-connected and Inclusive of different faiths and Beliefs, Gender and Sexual Diversity.

Written by: Nasreen Saunders - Media, Marketing, Publications Officer (The Inner Circle)