The government of India decided on September 17, 2009 that it will not oppose the Delhi High Court verdict on Section 377 of the Penal Code, which decriminalizes homosexuality by “reading down” the section pertaining to same-sex relations between consenting adults in private. Indian activists are praising this decision as a symbol of tacit support for decriminalization in this landmark case.
Following the High Court’s ruling on July 2, 2009, a panel composed of Law Minister M. Veerappa Moily, Home Minister P. Chidambaram, and Health Minister Ghulam Nabi Azad was assembled to consider the advantages and disadvantages of changing the law. After reviewing the findings of the panel, the government has opted not to join the appeal and to let the Supreme Court determine the “correctness” of the High Court’s ruling. Upon announcing the decision, Information and Broadcasting Minister Ambika Soni added that the Cabinet would ask Attorney General Goolam Vahanvati to assist the Supreme Court in any way possible, suggesting that the government could still weigh in during the appeal.
The Cabinet’s deference to the judiciary effectively leaves the fate of Section 377 in the hands of the Supreme Court, which can be unpredictable or unwilling to intervene on moral issues. The Supreme Court has received several private challenges to the Delhi High Court’s verdict in this case, some of which are led by religious organizations using language reminiscent of Christian fundamentalism in the United States. The government’s neutrality on the issue – despite varying degrees of support for reading down Section 377 from all three members of its exploratory panel – suggests that the government may be reluctant to bear the furor of opponents from conservative political parties and unleash a backlash from conservative community groups.
Gay journalist and activist Vikram Doctor says, “We knew there was resistance from some members of the government but saner voices have prevailed, and this is a really important signal to the Supreme Court on how the government would like the case to proceed.”
While IGLHRC appreciates that the Cabinet has refused to join the appeal, the government must also be a proactive voice for vulnerable segments of India’s society who are targeted for their sexual orientation and subjected to all kinds of abuses, including sexual violence, physical assaults, blackmail and intimidation by unscrupulous members of the community and police force who use the presence of Section 377 to act with impunity. Unequivocal support for the Delhi High Court’s decision by the central government will send a powerful message that lesbian, gay, bisexual and transgender people in India are entitled to human rights.
As noted by Chief Justice A.P. Shah of the Delhi High Court in his ruling on Section 377, “Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are.” Enacted by the British in 1868 when they ruled India, Section 377 is inconsistent with the Indian Constitution, specifically Article 14 on equality before the law, Article 15 on non-discrimination on grounds of sex, Article 19 on freedom of expression, and Article 21 on right to life and personal liberty.
At a September 16, 2009 forum on HIV, human rights and MSM in Washington, D.C., Michel Sidibe, Executive Director of UNAIDS linked homophobia and continued criminalization of homosexuality to a lack of HIV-related services. According to Sidibe, “We have to remove these laws as they reflect deep-seated stigma and prejudice. Instead of universal access, we have universal obstacles. Gay people are the ones who brought attention to HIV and AIDS but as we moved on to generalizing services for people with the virus, we forgot them.” Sidibe added that India’s decision on 377 is a huge victory because “removing laws that criminalize and discriminate herald a new framework and new commitment and a new movement to universal access to health and human rights.”
Click http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/globalactionalerts/931.html to see the full text of the Delhi High Court decision. Click http://www.iglhrc.org/cgi-bin/iowa/article/takeaction/partners/205.html to read the court proceedings on the 377 case.