India: Section 377 and Naz Foundation (India) Trust v. Government of NCT Delhi

Update: July 27, 2009

On July 20, 2009, India’s Supreme Court decided against issuing an interim stay on the July 2, 2009 Delhi High Court judgment which read down Section 377 of the Penal Code, decriminalizing “consensual sexual acts of adults in private,” including between two persons of the same sex. A stay would have suspended the new interpretation of 377 until the Supreme Court decided the case on appeal or the central government changed the law.

The Supreme Court made it clear that it would not make any decision before the central government made its position known and gave the government until September 14, 2009 to decide its stand on the matter. Attorney General G. E. Vahanvati told the Court that three ministers of the government were examining the July 2 judgment and would come out with an official position.

This move by the Supreme Court came in response to a recent challenge of the Delhi High Court judgment by an astrologer, who argued that decriminalizing consensual sex between persons of the same sex went against religious teachings and would “give rise to male prostitution” and “lead to the spread of HIV/AIDS.”

For more background about queer politics in India and this case, see Queer Politics by Ajoy Ashirwad Mahaprashasta, in Frontline, Volume 26 Issue 15.

Originally posted July 2, 2009

In 2001, the Naz Foundation, filed a public interest litigation (PIL) petition with the Delhi High Court, challenging the constitutional validity of Section 377 under Article 14 of the Indian Constitution on equality, Article 15 on equality on the basis of sex, Article 19 on freedom of speech and expression, and Article 21 on the right to privacy and health. Naz Foundation was represented by the Lawyers Collective with Anand Grover, who is now the United Nations Special Rapporteur on the highest attainable standard of health, as lead counsel. In 2006, Voices Against 377 filed an intervention in the Court in support of the Naz Foundation petition. Voices Against 377 is a Delhi-based coalition of human rights, women’s rights and children’s rights groups, and was represented in this case by Shyam Divan.

Section 377 has been used to persecute LGBT people and silence human rights defenders. In 2001, for example, four workers from Naz Foundation International, a New Delhi-based non-governmental organization working on HIV and AIDS and sexual health, and Bharosa Trust in Lucknow, in the northern state of Uttar Pradesh, were arrested and charged with conspiracy to commit sodomy and possession of obscene materials. The offices of Naz Foundation were also raided. All over India, with recent examples including incidents in Mumbai and Karnataka, police officers entrap men who have sex with men and members of the hijra (transgender) community, forcing them to pay money to the police and others involved in the entrapment (blackmail) in exchange for not revealing their sexual orientation and exposing them to criminal prosecution under Section 377.

Section 377 also violates international human rights law by discriminating against people on the basis of sexual orientation and arbitrarily detaining them. In Toonen v. Australia (1994), the United Nations Human Rights Committee stated that laws criminalizing consensual same-sex activity violate both the right to privacy and the right to equality before the law without any discrimination under Articles 2 and 26 of the International Covenant on Civil and Political Rights (ICCPR), to which India is a party. The Committee has affirmed this position on many occasions, either urging States to repeal laws criminalizing consensual same-sex activity or commending them for repealing such laws and bringing their legislation into conformity with the ICCPR.1 The Working Group on Arbitrary Detention has also taken the view that detentions based solely on a person’s sexual orientation, as is the case for people prosecuted and detained under anti-sodomy laws like Section 377, are arbitrary because they violate the ICCPR’s guarantee of equality before the law and the right to equal legal protection against all forms of discrimination.2

Activists identify several benefits from the recent decision to decriminalize homosexuality. Significantly, opportunities for entrapment and blackmail of LGBT people, which take advantage of their fear of being prosecuted for their sexual orientation and gender identity, can now be challenged more publicly and hopefully decrease. However, it must be noted that regardless of Section 377, sex workers are still entrapped, detained and penalized using other laws. The positive court decision also will enable LGBT and HIV/AIDS groups and activists to continue or expand their work without persecution by the authorities. Individuals can participate in Pride marches and other related demonstrations with less fear of being prosecuted under Section 377.

At the same time, there is some worry of negative repercussions since a favorable judgment will not end homophobia and its devastating effects on the lives of LGBT people in India. One concern is the possibility of organized and social backlash against LGBT people as their issues and identities are made more public and prominent in mainstream media and could potentially increase family and community surveillance and violence. Some activists say there is an even greater urgency now for safe houses, particularly for young lesbians, bisexual women, and non-gender conforming men and women. There is also some criticism that the disappearance of Section 377 will not make a significant difference in the daily lives of vernacular (non-English speaking) youth, economically disempowered people, or non-heteronormative women facing forced marriages, forced confinement by the family, and forced separation from same sex partners because these issues are grounded in denial of autonomy and dignity for non-conforming sexuality, gender identity or expression.

Despite these concerns, the overwhelming feeling among most activists is that the positive verdict in Delhi has tremendous symbolic value and could lead to more public debate, more challenges to other repressive morality laws, and increased support for social change in India.

This article is part of IGLHRC's Action Alert: India: Support Delhi Court’s Decision to Decriminalize Sodomy (inactive).

1- See Human Rights Committee Concluding Observations: United States of America, A/50/40, October 3, 1995; Cyprus, CCPR/C/79/Add.88, April 6, 1998; Ecuador, CCPR/C/79/Add.92, August 18, 1998; Chile, CCPR/C/79/Add.104, March 30, 1999; Lesotho, CCPR/C/79/Add.106, April 8, 1999; Romania CCPR/C/79/Add.111, July 28, 1999; Australia, A/55/40, July 24, 2000; Egypt, CCPR/CO/76/EGY, November 28, 2002; Kenya, CCPR/CO/83/KEN, March 28, 2005; United States of America, CCPR/C/USA/CO/3, September 15, 2006; Barbados, CCPR/C/BRB/CO/3, May 11, 2007; Chile, CCPR/C/CHL/CO/5, May 18, 2007.

2- See Report of the Working Group on Arbitrary Detention: “Civil and political rights, including the questions of torture and detention”, para. 73, E/CN.4/2004/3, December 15, 2003; Opinions adopted by the Working Group on Arbitrary Detention, No 7/2002 (Egypt), paras. 5-29, E/CN.4/2003/8/Add.1, January 24, 2003; Report of the Working Group on Arbitrary Detention: “V. Regarding the Arbitrary Nature on the Ground of Discrimination - of Detention Motivated by Sexual Orientation”, paras. 68-69, 76, E/CN.4/2003/8, December 16, 2002.