The latest issue of Time has an article with the arresting title, 'Why Asia's gays are starting to win acceptance.' Not surprisingly, the Naz Foundation case features prominently in the piece, though its principal focus is upon the far more audacious pace of change that has occurred in Nepal over recent years. The piece provides profiles of activists in Nepal, India, China, and Japan, and also tracks recent developments in these jurisdictions. Tarunabh had earlier posted about the Nepal Supreme Court's historic Dec 2007 ruling here, and the Time article profiles the man who was the lead petitioner in - and driving force behind - the case. The article also profiles some of the people who have been prominent in the Naz Foundation case, and is an interesting and stimulating read overall.
I was struck by one particular passage in the article:
The rising visibility of gay people in the region is just one of many social changes that have been accelerated by travel, urbanization, education, democratization and, most of all, the explosion of information across every imaginable medium. This isn't simply Westernization — the old argument that homosexuality is yet another crass cultural import from the West has been all but discarded. But the Asian social institutions and beliefs that often stood in the way of tolerance — religious conservatism, intense emphasis on marriage and having children, cultural taboos against openly discussing sexuality — are weakening. In some parts of Asia, space is opening up for homosexuals in society. "The debate about sexuality is in the realm of the constitution, of democracy, equality and human rights," says Gautam Bhan, a gay activist in New Delhi. "The terrain of the debate has shifted." (Emphasis added)
Much as I would like to agree with the argument in the highlighted portion in the above passage, I believe that based upon the statements of high judicial figures in India (both sitting and retired) who may have a crucial say on the eventual outcome of the Delhi High Court ruling in the Naz case, this may be an overly optimistic analysis. The ‘Westernization’ attack has been leveled not only by the far right in India, but by more centrist figures who have otherwise devoted careers to upholding values and ideas that some within the far right would still consider to be ‘Western’ imports, including the ideas of the ‘rule of law’, ‘judicial independence,’ ‘separation of powers,’ and even basic notions of ‘constitutionalism.’
The challenge for constitutionalists then, is to find ways to counter such notions by arguing, as the Delhi High Court did, that the ruling in Naz can be justified upon values that are solidly entrenched within our constitutional document.