With thanks to our colleagues at Amnesty International for the information contained in this post.

Today, July 2, 2009, the High Court of Delhi found that Section 377 of the Indian Penal Code, which criminalized consensual sexual acts of adults in private, violated the Indian Constitution.  This ruling decriminalizes homosexuality in India and is being hailed by advocates in India and worldwide as the first step toward equality for gay, lesbian, and transgender persons in that country.  And with this decision, India becomes the latest country to join the global trend towards decriminalization.

"The decision is a significant step toward ensuring that people in India can express their sexual orientation or gender identity without fear or discrimination," said Amnesty International in a press release.

Amnesty quotes the Naz Foundation, an Indian sexual rights organization which brought
the case against Section 377, as stating:

It’s an
incredible day, it’s been a long battle. Today homosexuality has been
decriminalized but not legalized. It is a baby step but finally India
has entered the 21st century.

"This British colonial legacy has done untold harm to generations of individuals in India and across the Commonwealth” said Madhu Malhotra, Deputy Director, Asia Pacific, Amnesty International (AI).

As explained by AI, the ruling overturns a 19th century British colonial law which bans engagement in consensual sex with an individual of the same sex as “carnal intercourse against the order of nature”.

Amnesty stated that:

The law had been used to stifle the work of organizations working on HIV/AIDS prevention in India. The court rejected the law as discriminatory and “against constitutional morality."

Amnesty and other advocates are calling on the government to begin immediately to implement the law, in part, according to Malhotra, by starting to:

address abuse and discrimination by police and other officials and take measures to end discrimination on the basis of sexual orientation and gender identity in access to economic, social and cultural rights, including housing, employment and health services.

According to Amnesty’s report, the court’s ruling rejected every argument put forward by the government in defence of the law. It found that section 377, the law criminalizing homosexuality, reflected an understanding of sexual orientation that is “at odds with the current scientific and professional understanding”.

In particular, the government’s contention that the measure helped stop the spread of HIV/AIDS is “completely unfounded” and “based on incorrect and wrong notions,” the court said.

The court acknowledged that Section 377 has been used to “brutalis[e]” members of the gay community and other men who have sex with men, abuses that have long been documented by local human rights defenders and Amnesty International, among others.

The Judges ruled that popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights set forth in the Indian Constitution.

India has no laws specifically criminalizing child sexual abuse and has used Section 377 to address this gap. The court’s ruling now restricts section 377 to cases of rape and child abuse.  Amnesty International is urging lawmakers to rewrite the law to deal explicitly with those crimes.

Amnesty has further called on those countries that continue to criminalize homosexuality to follow India’s example and repeal their own laws, the majority of which remain within Commonwealth countries.

For more information see the Amnesty report: Love, hate and the law: Decriminalizing homosexuality (http://www.amnesty.org/en/library/info/POL30/003/2008/en)
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