The Indian law states that a person may claim to have been defamed where another has made a statement about him with the intent to lower his standing in the estimation of others.
While earlier, US Courts consistently ruled that calling someone a homosexual amounted to defamation, the recent trend has been that the Courts are pausing, taking a look at the society around them, and realizing that being called a homosexual does not cause loss of standing in the estimation of society because homosexuality is accepted by society as a natural state of being as any other. The recent trend shows that US Courts are consistently ruling that calling someone ‘gay’ does not amount to a count of defamation.
What about India? We are in an in-between stage. We aren’t completely bound by a conservative mindset where we would discriminate against a person solely on account of him or her being homosexual. However, we haven’t yet advanced enough to be all-embracing of homosexuality or even accepting of it. Calling someone a ‘gay’ person is with the intent to cause loss of estimation and quite unfortunately, it more often than not has it’s desired effect in most settings in India. Some reactions that came up during the discussion were an interesting reflection on the societal mindset – “Of course it is. It’s like saying he’s not a man.” It’s interesting to note that such is the mind set here that such allegations would have a societal effect – you could be denied accommodation by owners and you could be harassed in a million other ways. Workplaces don’t have an anti-discrimination policy as regards homosexuality as yet. Considering the effect it would have, would such a statement amount to defamation here?
The Naz foundation judgment by the Delhi High Court, in July 2009, decriminalized homosexuality. When Lord Atkins is quoted as saying Defamation a statement that has the effect of lowering one’s reputation in the eyes of the right thinking members of society, one wonders what constitutes ‘ right thinking members of society’. It would be a step back if a Court were to rule that calling a person ‘gay’ amounts to defamation. It would be legal recognition of a social stigma.
P.S. There is no such ongoing case in the Court, this is a mere byproduct of a lunch room discussion. I wish there was. It would go a long way in eliminating social stigma.