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Anjali Gopalan: +91-9811008374

Tripti Tandon: +91-9811013472

Shivangi Rai: +91-9999343521

 

Indian Court Decriminalises Homosexuality

 

2^nd July 2009, New Delhi: In an unprecedented decision, the Delhi High Court annulled the law that criminalizes adult homosexual relations, ending an eight year old legal battle for equal rights.  

 

Pronouncing the order in Naz Foundation (India) Trust v. Government of NCT, Delhi and Others, Writ Petition (Civil) No. 7455 of 2001, a division bench of Chief Justice A.P Shah and Justice S. Murlidhar said “We declare that Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution.”

 

Elaborating the reasons behind the order, Chief Justice A.P Shah said “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that the Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect, is manifest in recognizing a role in society for everyone. Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized. “

 

The Court further affirmed, “In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of the LGBTs are. It cannot be forgotten that discrimination is anit-thesis of equality and it is the recognition of equality that will foster the dignity of every individual.”

 

Enacted in the 19^th century by the British, Section 377 of the Indian Penal Code penalises persons voluntarily engaging in “unnatural sex” with imprisonment upto ten years or life. Though the phrase is ambiguous, the section has been interpreted to mean non-penile vaginal sex, including between consenting, adult men.  

An ecstatic Anjali Gopalan of the Naz Foundation (India) Trust, the petitioner in the case, said “We welcome the Court’s decision, which marks respect for human rights – irrespective of one’s sexuality or sexual orientation.”

 

Filed in 2001, the public interest litigation assailed Section 377 for infringing homosexuals’ rights to equality, privacy, dignity and health. In 2004, the petition was dismissed on grounds that the petitioner had no right to challenge the law, as it was not being prosecuted under Section 377.  In 2006, the Supreme Court remanded the matter back, directing the High Court to hear the case on merits.

 

In Court, the Union Government took different stands; while the Home Ministry argued that removal of the section would open “floodgates of delinquent behaviour”, the Health Ministry maintained that criminalization impeded its efforts to prevent HIV among homosexuals. The hearing closed last year in November.

 

Last week, Home Minister - P. Chidambaram and Law Minister – Veerappa Moiley had signaled a rethink on the Government’s position after consultations with other Ministries and religious groups.

 

Explaining the verdict, Director of the Lawyers Collective - Advocate Anand Grover, who argued for the petitioner, said “Section 377 can longer be used to arrest, prosecute or harass homosexuals. Instead, its application will be limited to cases where the victim is a child or an unwilling adult.” The petitioner had sought to exclude sex between consenting adults in private from criminality. “The Court has affirmed that fundamental rights of sexual minorities cannot be trumped on vague notions of culture and morality.” said Grover.  

 

Ashok Row Kavi, leading gay activist said “Section 377 justified social, moral and legal repression of homosexuals. It was like being told – you are a criminal, because of who you are.” Some years ago, the National Human Rights Commission refused to take action on a complaint of inhuman medical practices to “convert” homosexuals, because of Section 377. “All this should change now” – exclaimed an optimistic Row Kavi.

 

Besides the gay community, the decision has been welcomed by other quarters. K. Sujatha Rao, Secretary, Department of AIDS Control, Ministry of Health said “While the National AIDS Control Program has achieved some measure of success in reducing HIV among sex workers, rising sero prevalence among homosexual men has been a cause of worry. With criminal sanctions gone, we hope to reach out better to men who have sex with men and encourage safer sex.”

 

Support rang in from the international community as well. Australia’s longest serving and openly gay Judge Michael Kirby remarked “Over the years, I have traveled to India several times, discussing matters of sexuality, law and rights with the legal fraternity. I’m very pleased that the Delhi High Court has ruled against prejudice; in favour of liberty, equality and dignity of gay Indian citizens.” With this, India joins the ranks of 128 nations where homosexuality is legal.  “Section 377 was an alien legacy; responsible for stigma, violence and homophobia in India. I am confident that with this verdict, gay, bisexual and transgender persons will no longer live in fear but stand confident and proud” exclaimed Justice Kirby.

 

Speaking on behalf of the United Nations, Charles Gilks, UNAIDS Country Coordinator in India said, “We are excited by the  Delhi High Court’s ruling and hope that it will send a positive signal to many other countries,  especially in South and West Asia, where sodomy is punishable by death. Locally, it will give a boost to efforts to prevent HIV among homosexual men, who will no longer be fugitives from the law.”  

 

In the next few weeks, the government will have to make up its mind whether to appeal against the decision. “We hope that better sense will prevail upon the Government to respect the Court’s verdict” – said Gopalan.   

 

Full text of the judgment is available at http://lobis.nic.in/dhc/

 

Tripti Tandon

Lawyers Collective HIV/AIDS Unit, India

www.lawyerscollective.org