2 Jul 2009

Delhi High Court legalises gay sex

In a historic and eagerly anticipated judgment following an 8-year legal battle, the Delhi High Court on Thursday legalised gay sex among consenting adults by ruling in favour of a petition which sought a 'reading down' of Section 377 of the Indian Penal Code.

“Equality should not be read literally, but in true spirit.”

Chief Justice A. P. Shah, who wrote the historic judgment, invoked the words of Jawaharlal Nehru - the country's first Prime Minister since independence from Britain - when he said that any kind of discrimination is anti-thesis of right to equality and that just because some people did not like a minority was not sufficient to treat those minorities as criminals.

On Thursday, the Delhi High Court ruled in favour of the petition filed by a HIV/AIDS NGO Naz Foundation in 2001 which sought a 'reading down' and not a total repeal of Section 377 of the Indian Penal Code in order to decriminalise private consensual sexual activity regardless of the sex of the parties involved. The petition argues that the law is a threat to the right to life and right to health of homosexuals in India because it perpetuates social stigma and police abuse. It also highlighted the law as obstructing HIV/AIDS prevention work among the gay community, thereby causing the increased vulnerability to contracting the disease.

The judgement will only be binding in Delhi also known officially as the National Capital Territory of Delhi (NCT) and is the second-largest metropolis in India with some 16 million residents of the country's total population of 1.15 billion.

The Times of India reported the bench comprising Chief Justice Shah and Justice S Muralidhar as saying that if not amended, Section 377 of the IPC would violate Article 21 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before the law. The court said that its judgement will hold till Parliament chooses to amend the law.

"In our view Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconception of who the LGBTs (lesbian gay bisexual transgender) are.”

"It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster dignity of every individual," the bench said in its 105-page judgement.

While the law will be read down, it will continue to stay on the books for use in child sexual abuse, and non-consensual penile non-vaginal sex cases.

Vikram Doctor, a journalist and Fridae source said, “It’s amazing, an unbelievable culmination of an eight-year struggle (and the start of another one, but we do have this win).
“This judgment is particularly historic because it strikes down a law that was first applied in India by the British and then taken across the world, where it has harassed countless people. Today the Delhi High Court has struck down this law at its root and we hope this sends a message both to the Indian government and governments across the world.”

Anand Grover, the laywer who argued the case for Naz Foundation, described - in an AFP report - the decision as an "historic event because India was the country where the anti-sodomy laws were first statutorised... and the same law was then replicated all over the British Commonwealth."

It is known whether the Centre would appeal against the ruling in the Supreme Court.

In a statement issued today, the Human Rights Watch has urged India’s government not to contest or appeal the decision. The group also urged India’s Lok Sabha (Parliament) to move quickly to scrap Section 377 nationwide, and to replace it with laws that would provide full, gender-neutral protection for children and adults against sexual abuse and assault. Existing Indian “rape laws” do not recognise anything but penile-vaginal penetration as sexual assault, which leaves many adults and children, including male children, unprotected.

Extracts from the judgement which can be downloaded by clicking the PDF link below.

The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs. The number of lesbians and transgenders is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied "moral full citizenship". Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in "The Indian Constitution - Cornerstone of A Nation", "they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India". (Page 43)

The criminalisation of private sexual relations between consenting adults absent any evidence of serious harm deems the provision's objective both arbitrary and unreasonable. The state interest "must be legitimate and relevant" for the legislation to be non-arbitrary and must be proportionate towards achieving the state interest. If the objective is irrational, unjust and unfair, necessarily classification will have to be held as unreasonable. The nature of the provision of Section 377 IPC and its purpose is to criminalise private conduct of consenting adults which causes no harm to anyone else. It has no other purpose than to criminalise conduct which fails to conform with the moral or religious views of a section of society. The discrimination severely affects the rights and interests of homosexuals and deeply impairs their dignity. (Page 76)

Section 377 IPC has the effect of viewing all gay men as criminals. When everything associated with homosexuality is treated as bent, queer, repugnant, the whole gay and lesbian community is marked with deviance and perversity. They are subject to extensive prejudice because what they are or what they are perceived to be, not because of what they do. The result is that a significant group of the population is, because of its sexual non-conformity, persecuted, marginalised and turned in on itself. (Page 80)

Related articles:

- Delhi High Court legalizes homosexuality (Times of India, Jul 2)
- A banner day for equality (Times of India, Jul 2)
- Homosexuality: Chronology of eight year-long legal proceedings (The Economic Times, Jul 2)