A recent decision by the High Court of Delhi has declared unconstitutional a section of India's Penal Code that discriminated against adults in same-sex consensual relations.
By Kathambi Kinoti
The Indian Penal Code’s infamous section 377 was read down by Delhi’s High Court on July 2, 2009. The law, which mirrored sections of criminal statutes in other former British colonies made consensual adult same-sex relations illegal. Not only were they illegal; the law proclaimed that they were “against the order of nature”. The court ruled that “section 377 insofar as it criminalises consensual sexual acts of adults in private, is violative of articles 21, 14 and 15 of the Constitution.”
The antiquated law dates back to 1861 and according to a press statement by the coalition Voices Against 377, “has caused the blackmail, harassment, fear and death of many lesbian, gay and transgender persons in India.” The court acknowledged that the section had been used to brutalise many.
Vinita Sahasranaman, Manager of Programs of the Delhi based organisation CREA, one of the member organisations of Voices Against 377, says that the judgement was beautifully crafted and drew from notions of equality, dignity and justice.
Sahasranaman says that “by quoting Jawahar Lal Nehru [India’s first Prime Minister] the judgement reaffirmed that India as a culture has always been inclusive of diversity and the rights of LGBTQI people have to be seen in that light.” In the judgement, the court said: “If there is one constitutional tenet that can be said to be the 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…Those perceived by the majority as ‘deviants’ or ‘different’ are not on that score excluded or ostracized.”
The declaration of the court was met with jubilation in India and around the world. “We are all excited, enthused and overwhelmed with this historic judgement,” said Sahasranaman. CREA’s Executive Director Geetanjali Misra called it truly exciting. Not everyone was happy with the decision however, and a number of religious leaders have spoken out against it. Misra says that the majority of Indian society is homophobic and she thinks there is a high possibility that there will be an appeal in the Supreme Court of India.
The decision of the High Court of Delhi was the result of several years of hard work by the petitioner the Naz Foundation India Trust with the support of other organisations and the Voices Against 377 coalition. Naz is a Delhi based NGO working on HIV and AIDS and sexual health. In 2001 Naz filed a public interest litigation in the Delhi High Court asking for a declaration that section 377 was unconstitutional, marginalised Indian citizens and also interfered with HIV prevention measures. The case was dismissed, and Naz then took it to the Supreme Court which referred it back to the High Court. In 2006, Voices Against 377 became a co-petitioner, filing affidavits from lesbian, gay, bisexual, transgender, queer and intersex people (LGBTQI). Misra says that it was necessary to have these affidavits because the public interest litigation had been dismissed, among other reasons, on the ground that Naz was not directly affected by section 377.
The government of India in opposing the case had argued that the section helped to curb the spread of HIV, an argument the court rejected.
Apart from joining the case, Voices engaged in intense public and media advocacy including a signature campaign. CREA provided advice during the final arguments of the case to keep the focus on human rights and supported some of the costs related to the case. Representatives attended all court dates and served on a discussion group on the case. The organisation also initiated the documentation of the history of Voices before another member organisation took over.
Long road ahead
The landmark judgement was just one step in ensuring equal rights for LGBTQI people in India, and activists are not under any illusions that the struggle is anywhere near over. “While this judgement is a giant leap in the right direction,” says Sahasranaman. “the struggle for equal rights has to go on.”
More legal advocacy will be necessary in order to ensure that the section is repealed by Parliament and comprehensive laws protecting adults and children against sexual assault are enacted. One of the arguments that had been made against the challenge of section 377 was the fact that it was the only law that prohibited sexual assault against males, since India’s anti-rape laws only recognise penile-vaginal penetration. The parts of section 377 that were left standing were those related to non-consensual sexual acts and acts involving minors whether or not consensual.
There is also the challenge of getting India’s Parliament to enact laws that protect the equal rights of LGBTQI persons and to change the mindset of a homophobic society. Voices against 377 points to some signs that public opinion about sexuality is changing such as the inclusion of ‘other’ as an option in the gender column of the passport application form, and the historic judgment.
The case highlights the tension that sometimes arises between the willingness of courts to uphold constitutional ideals on the one hand, and the slowness of legislators to challenge societal norms, no matter how repressive. India Together carries an article titled "Sex meets society, in court," in which the writer is not hopeful that Indian politicians will begin to engage more meaningfully with the issues because of the consensual silence about sexuality in Indian society. If the silence on heterosexuality is great, the silence on homosexuality is even greater. “Our politicians have long considered themselves guardians of our culture,” says the writer who points out the irony that the law that was drafted long ago by India’s colonial rulers has survived even though “it contradicted a Constitution framed by the native leaders of our own freedom movement.” The writer goes on to say “Luckily, our courts are the guardians of our Constitution, not culture.”
Misra welcomes the court’s leadership in safeguarding the rights of people who have for so long been regarded as outsiders by their own communities. “It was not a weak attempt to quiet the dissidents,” she says. “But rather a challenge to an antiquated law, placing a reminder that equality is constitutionally protected. It showed a willingness bordering on eagerness to accept a changing public opinion.”