Landmark Delhi High Court decision recognizes inappropriate criminalization as a barrier to health, human rights and dignity
07 July 2009
The Delhi High Court declared section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private as violative of the rights to privacy, liberty, health and equality enshrined in the Constitution of India. Though the decision was largely seen as a victory for the men who sex with men and transgender people, it is a victory for all – regardless of sexual orientation and gender identity. The judgment is noteworthy and progressive in terms of its rejection of a hetero-normative and homogenous conception of sexuality. According to Justices Shah and Muralidhar, the Constitution of India recognizes, protects and celebrates diversity.
Justice Edwin Cameron of South Africa’s Constitutional Court speaking at a meeting of men who have sex with men in Kathmandu, Nepal said, “Admittance of gays and lesbians is the ultimate measure of a society’s capacity to view humanity in its fullness and of its commitment to equality, justice, secularism, and humane co-existence.” This judgement has propelled India’s AIDS response and human rights movement a giant leap forward in this direction.
The Delhi High Court has restored the dignity and human rights of millions of men who have sex with men and transgendered people in India. Oppressive laws such as Section 377, drive people underground making it much harder to reach them with HIV prevention, treatment and care services.
Michel Sidibé, UNAIDS Executive Director.
"The Delhi High Court has restored the dignity and human rights of millions of men who have sex with men and transgendered people in India,” said UNAIDS Executive Director Mr Michel Sidibé. “Oppressive laws such as Section 377, drive people underground making it much harder to reach them with HIV prevention, treatment and care services.”
Justices Shah and Muralidhar’s judgment is evidence informed and grounded in human rights drawing its argument from case law from India and around the world, international declarations and commitments, scientific studies and UNAIDS policies.
In its affidavit before the judges, India’s National AIDS Control Organization (NACO), taking a opposite stand from that of the interior ministry contended that section 377 has hampered HIV prevention efforts. NACO cited that only 6% of all men who have sex with men have access to HIV prevention, treatment, care and support services, as most of them are reluctant to reveal their same sex behaviour due to fear of extortion, harassment, and violence at the hands of law enforcement authorities. It was noted that section 377 encourages people to remain hidden - making it difficult for them to access essential HIV, health and social services.
According to Jeffrey O’Malley, Director of UNDP’s HIV Practice, “Inappropriate criminalization is a major impediment to achieving universal access. This landmark judgment emphasizes the importance of improving the human rights situation for men who have sex with men and transgender people across the globe. We hope that other countries will follow suit. The realization of human rights for all is not only fundamental to our common humanity, it also is imperative for an effective AIDS response and generating broader health and development benefits.”
The realization of human rights for all is not only fundamental to our common humanity, it also is imperative for an effective AIDS response and generating broader health and development benefits.
Jeffrey O’Malley, Director of UNDP’s HIV Practice.
According to Justices Shah and Muralidhar, the criminalization of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The judges referred to Article 12 of the Universal Declaration of Human Rights which states, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."
The judges concluded that to stigmatize or to criminalize homosexual only on account of their sexual orientation would be against constitutional morality. The judgment held that morality cannot be held as a ground for restriction of fundamental human rights. Justices Shah and Muralidhar concluded that “while it could be “a compelling state interest” to regulate by law, the area for the protection of children and others incapable of giving a valid consent or the area of non-consensual sex, enforcement of public morality does not amount to a “compelling state interest” to justify invasion of the zone of privacy of adult homosexuals engaged in consensual sex in private without intending to cause harm to each other or others.” The judges quoted a leading Indian luminary, Justice Krishna Iyer who said, “... The compulsion of constitutional humanism and the assumption of full faith in life and liberty cannot be so futile or fragmentary that any transient legislative majority in tantrums against any minority by three quick readings of a Bill with the requisite quorum, can prescribe any unreasonable modality and thereby sterilise the grandiloquent mandate.”
In their conclusion, the judges drew from one of the key principles of the Indian Constitution—inclusiveness. “If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants' or 'different' are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. Justices Shah and Muralidhar held that Indian “constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the lesbians, gay, bisexuals, and transgender people are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
In the 2006 United Nations Political Declaration on HIV/AIDS, governments committed to removing legal barriers and passing laws to protect vulnerable populations. Evidence shows that countries which have laws to protect men who have sex with men, injecting drug users and sex workers have provided better access to HIV prevention, treatment, care and support. UNAIDS along with UNDP, the lead Cosponsor, focusing on expanding and strengthening policies and programmes for men who have sex with men, transgender people and HIV, will support countries in removing laws that block effective AIDS response and increasing access to HIV prevention, treatment, care and support.
UNAIDS urges all governments to ensure full respect for the human rights of men who have sex with men, lesbians and transgender people through repealing laws that prohibit sexual acts between consenting adults in private; enforcing laws to protect these groups from violence and discrimination; promoting campaigns that address homophobia, transphobia and stigma, and ensuring that essential health and social services and support are available and accessible.