Indian Constitutional Law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti-thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.
Chief Justice S. Muralidhar, Deli High Court
The decision this week of the Delhi High Court to decriminalize homosexuality has received coverage from around the globe, and rightly so. This monumental judgment follows years of activist efforts, such as ‘Voices Against 377’, battling Section 377 of the Indian Penal Code, which describes homosexual sex as an “unnatural offense” and “against the orders of nature”. The case itself has been an eight year long battle, with NGO Naz Foundation having first filed the Public Interest Litigation (PIL) seeking legalization of homosexual sex back in 2001.
The High Court concluded on Thursday that Section 377 violates articles 14, 21 and 15 of the Constitution. Article 14 guarantees all people “equality before the law,” Article 15 prohibits discrimination “on grounds of religion, race, caste, sex or place of birth,” and Article 21 guarantees “protection of life and personal liberty.” The Petitioners had argued that Section 377 targets homosexuals in an unfair and arbitrary way, infringes upon their rights to privacy and “conveys the message that homosexuals are of less value than other people, demeans them and unconstitutionally infringes upon their right to live with dignity”. They also challenged morality as a basis for restricting rights.
The judgment of the High Court was unquestionably progressive, drawing on decisions from Canada which discuss the meaning of dignity, provisions in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and European Convention on Human Rights to analyze the right to privacy, as well as Roe v Wade. The High Court also discussed the Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity in detail as well as the impact that criminalization of homosexual sex has had in different parts of the world, including South Africa. They also cited the opinion of Justice Kennedy in Lawrence v Texas that “when homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and private spheres”. The High Court further recognized the impediment created by criminalization to public health programming. A remarkable and essential declaration on the rights of LGBT people indeed!
The former Central Government itself was brought into the case in 2006, with the High Court allowing a senior Bharatiya Janata Party (BJP) leader, whose party was then in power, to join the case and oppose decriminalizing homosexual sex. The Central Government’s position throughout the case has not been without controversy, with a clear division of opinion between the Ministry of Home Affairs, which opposed any change to Section 377 and the Ministry of Health which was not in favor of the criminal provisions, largely due to their contribution to pushing those infected with HIV underground. Both Ministries filed what the Chief Justice of the High Court referred to as “completely contradictory affidavits”. Even though the decision applies only in National Capital Territory of Dili, according to advocates, it will either force India’s Central Government to appeal the decision to the Supreme Court, or the Parliament of India to amend the law nationwide.
The legacy of colonialism behind Section 377 is worth noting, as we cannot forget the other countries around the globe that continue to criminalize homosexuality. Section 377 was introduced in the 1860 Penal Code when India was under British rule. In fact, this history was used as an excuse by the delegation of the Central Government at the Human Rights Council’s Universal Periodic Review of India’s human rights record in April 2008 in Geneva when criticized by the Government of Sweden for criminalizing homosexual conduct. The delegation claimed it was “a Western concept, which has remained over the years (PDF)”, even though homosexual sex was decriminalized in England and Wales in the late 1960s under the Sexual Offences Act 1967. According to a report released by Human Rights Watch last year, almost half the world’s remaining "sodomy laws" stemmed from the spread of Section 377 by British rulers to other colonies. This includes Bangladesh, Malaysia, Papua New Guinea and Singapore in Asia and the Pacific as well as Botswana, Kenya, Nigeria, Uganda and Zimbabwe in Africa. It brings to mind the ban on abortion introduced to the Philippines based on a direct translation of the Spanish Penal Code of 1870, with Spain having since liberalized its own abortion law, with Filipino women stilled denied their rights.
The indignity and rights violations perpetrated as a result of Section 377 should not be forgotten as we celebrate this victory. The Petitioners argued that Section 377 had been a “weapon for police abuse,” creating a continually victimized class of vulnerable people. According to the Naz Foundation, it was used to facilitate harassment, extort money, blackmail, and even rape homosexuals in India, mainly those from the lower socio-economic classes who had little knowledge of the law and their rights. Section 377 was also used by police to justify raids on parties and events.
Unfortunately, the battle continues, both in terms of building awareness of the decision and advocating for change on issues of discrimination, harassment and corruption in India and for LGBT rights activists in other countries around the world where homosexual sex remains criminalized. Yet we see in the decision of the Delhi High Court an important precedent. This should bring hope to rights activists around the globe, such as Repeal 377a, a group still fighting Singapore’s ban and encourage global recognition, particularly politically, of the rights of all people to equality and a life free from discrimination and of the importance of respect for personal dignity.