Delhi High Court Court Decriminalises Homosexuality

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Tripti Tandon:

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Indian Court Decriminalises Homosexuality

2nd 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 19th 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 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, 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