India: Support Delhi Court’s Decision to Decriminalize Sodomy

Crossposted from the ILGHRC website: http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/globalactionalerts/931.html

“Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.”-Chief Justice S. Muralidhar of the Delhi High Court

The Issue

The High Court of Delhi has ruled in Naz Foundation (India) Trust v. Government of NCT Delhi and Others that Section 377 of the Indian Penal Code is unconstitutional. The judgment, handed down on July 2, 2009, reinterprets the law that criminalized same sex relations. Section 377 carried a penalty of up to 10 years to life in prison and a fine. The Court declared that this law no longer applies to consensual sexual acts of adults because it violates Articles 21 (protection of life and personal liberty), 14 (equality before law) and 15 (prohibition of discrimination) of the Indian Constitution.

Enacted in the 1860s during British colonial rule to criminalize non-procreative sex, specifically sex between men, Section 377 has been used by police and other individuals to entrap, harass and blackmail those with non-conforming sexual orientations and gender identities and human rights defenders. This law has encouraged sexual and physical abuse of gay men and transgender people in police custody. While the text is silent on lesbianism, it has facilitated an environment where family violence against lesbians and bisexual women happens with impunity, leading to women’s injury, death, and suicide. The Court’s decision to change this law helps ease the environment of fear in which countless LGBT people live their lives in Delhi.

Although the judgment is limited to Delhi, it is widely anticipated by LGBT activists in India that similar challenges will be brought in other cities, hoping courts will favorably reference the Delhi decision. The Delhi High Court, along with the Mumbai (Bombay) and Chennai (Madras) High Courts, usually leads other High Courts in India when it comes to legal trends.

Click here to find out more about India’s anti-sodomy law and how the Delhi decision affects LGBT people.

IGLHRC thoroughly congratulates the Lawyers Collective, Naz Foundation, and Voices Against 377 on their historic win for human rights. These human rights defenders worked tirelessly to raise awareness about the dangerous and damaging consequences of Section 377 and get it changed by the Court. The Delhi decision is a crucial step towards preserving human rights. IGLHRC calls on the Indian government to go further and repeal Section 377 nationally.

Action

IGLHRC urges you to send congratulatory statements for this human rights victory in Delhi to officials in the Indian government involved with this case and call on the central government to repeal Section 377 nationally. Your letter will convey to the Indian government the worldwide support for the Delhi decision.

action

Click here to send your customized message to Indian officials and the activists involved in this case using our new automated advocacy system.

Contact

Minister of Home Affairs
Mr. Palaniappan Chidambaram
Room No. 134,
North Block,
New Delhi 110 001
India
Fax: +91 11 23094221 or +91 11 23093750 or +91 11 23092763
websitemhaweb@nic.in
Minister of Health and Family Welfare
Mr. Ghulam Nabi Azad
5 South Avenue Lane,
New Delhi 110011
India
Fax: +91 11 23061658
azadg@sansad.nic.in and Resp-health@hub.nic.in
Minister of Law and Justice
Mr. Veerappa Moily
4th Floor, A-Wing, R. 403
Shastri Bhawan,
New Delhi 110 001
India
Fax: +91 11 23015223 and +91 11 23384241
cpio-la@nic.in

cc:

Lawyer’s Collective
aidslaw1@lawyerscollective.org
IGLHRC
communications+action.alert@iglhrc.org

Sample letter

Mr. Palaniappan Chidambaram, Minister of Home Affairs

Mr. Ghulam Nabi Azad, Minister of Health and Family Welfare

Mr. Veerappa Moily, Minister of Law and Justice

Your Excellencies:

I would like to express my congratulations and support for the New Delhi High Court decision in Naz Foundation (India) Trust v. Government of NCT Delhi and Others, which changed Section 377 of the Indian Penal Code so that it no longer prohibits same-sex activity between consenting adults. Section 377 was dangerous and damaging to all people, encouraging violence and discrimination on the basis of sexual orientation, gender identity, and gender expression. This decision has removed a key tool of bigotry and state-sponsored homophobia, bringing Delhi in line with international human rights standards and strengthening the rights to life, liberty, privacy, health, and expression guaranteed by the Indian Constitution.

This decision will have many important positive effects for gay, lesbian, bisexual and transgender (LGBT) people in India. Opportunities for entrapment and blackmail of LGBT people because of their fear of prosecution under Section 377 will diminish; LGBT and HIV/AIDS groups and activists can now continue and expand their work without fear of being persecuted under 377; more LGBT individuals and groups will be willing to participate in Pride marches and other events; families and members of the community will also be more empowered to support and defend the rights of sexually and gender variant people; and the media will be encouraged to pay more attention to LGBT concerns and to cover LGBT issues in positive and sensitive ways.

The decision to read down Section 377 by the Delhi High Court is truly a crucial step in ensuring that the human rights of all people in India, including LGBT people, are protected. The tremendous efforts by Indian civil society, including the Naz Foundation and Voices Against 377 and their supporters are to be commended. I ask you now to support equality and dignity for all people in India, including lesbian, gay, bisexual, hijra and other gender variant people, by pushing for Section 377’s repeal nationally and instituting additional legal protections so that people are not violated on the basis of their sexual orientation, gender identity or expression.

Sincerely,

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