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India’s Legal Leap Towards Equality

3 July , 2009

In a historic moment for India’s equality movement, and in particular its Lesbian-Gay-Bisexual Transsexual (LGBT) community, the Delhi High Court has decriminalised homosexuality. In overturning section 377 Indian Penal Code, a law installed and left by the British almost 150 years ago which criminally penalised what were termed “unnatural offences”, the judgment is a massive victory for gay rights campaigners in a country where homosexuality is still a major taboo.

The campaign to repeal section 377

Millions of Indians have felt the bitter blow of section 377. The archaic law, left as an outdated and unwelcome legacy of colonialisation, has been the subject of an increasingly vocal campaign, both within India and outside. In the world’s biggest democracy, a law that seeks to exclude and criminalise a minority on grounds of their sexuality has been criticised rightfully by human rights organisations, such as Human Rights Watch, as well as local Indian organisations who have worked tirelessly to back changes in public attitudes. In 2006, Vikram Seth wrote an open letter to the Government of India campaigning for the repeal of the law which he branded “disgraceful”. The letter was signed by some of India’s most well known activists and public figures.

Amartya Sen added his voice to the plea, stating that “It is surprising that independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861.  That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America.  Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization”.

Just as in Europe, where the push for anti-discrimination measures has been viewed by lawyers and the legislative alike as a means for changing outdated public perceptions, so a change in the law in India has been argued as necessary in order to begin the long process of battling with negative and popular discriminatory attitudes towards the LGBT community.

 A colonial legacy

The judgment makes interesting historical reading. It charts the course of British anti-gay legislation, starting in 1290 where “sodomites” were to be punished by being burnt alive, and later to be hanged, under the Buggery Act 1533. In 1861, the death penalty for buggery was formally abolished in England and Wales, but the crime of homosexual relations remained punishable as an act “not to be mentioned by Christians”. The Indian Penal Code was drafted and introduced by the British in 1861. Although in England, homosexual relations between consenting adults over the age of 21 was decriminalised by the Sexual Offences Act in 1967, there is little doubt that the law did not correspond with Indian values at the time, but rather enforced British Juedeo-Christain values at the time.

The petitioners

The case was brought on public interest grounds by the Naz Foundation, backed by a number of other public health and human rights organisations including Voices against 377 and the National Aids Control Association of India, which is part of the Ministry of Health. They argued that the major discriminatory attitudes towards homosexuality created a significant impairment to proper HIV/AIDS prevention efforts, and perpetuated the public’s negative and discriminatory beliefs towards homosexuality. Moreover, it was argued that State agencies, and notably the police ritually abused the fundamental human rights of the gay and trans-gender community through detention and questioning, harassment, abuse, forced sex and payment of hush money.

 A brutalised community

The material provided to the Court provided numerous examples of a community brutalised by State-sanctioned mistreatment, torture and abuse. One such incident was called ‘the Bangalore incident, 2004’.  The victim was a hijra (eunuch) from Bangalore, who was at a public place dressed in female clothing. The person was subjected to gang rape, forced to have oral and anal sex by a group of hooligans. He was later taken to police station where he was stripped naked, handcuffed to the window, grossly abused and tortured simply on the grounds of his sexual identity. The Court was provided with many similar affidavits testifying to this terrifyingly common level of abuse.

 The right to dignity

Against the Indian government’s argument that public morality was enforced by the retention of this provision, and the many religious bodies in the country openly demonising homosexuality the Delhi High Court noted that “dignity of the individual ” was a concept rooted in the Indian Constitution, and  that “dignity is the autonomy of the private will and a person’s freedom of choice and of action .Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others.” The Court held that section 377 violated Articles 21 (right to life and personal liberty), Article 14 (equality before law and equal protection from law) and Article 15 (prohibiting discrimination on several grounds including sex) The Court relied on the international Yogyakarta Principles on the Application of Human Rights Law in Relation to Sexual Orientation and Gender Identity, as well as looking outwards to international norms and legal judgments for affirmation that its own conclusions are now supported by a heavyweight legal and political community.

 Nehru and inclusiveness

Quoting Nehru, the Court stated that inclusiveness was a founding principle of the Indian Constitution. 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 ostracized….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.”

 

The wheels of justice move slowly in India, and no doubt it will take a long time for the ramifications of the judgment to be felt across India society. Whilst Indian editorials and NGOS have welcomed the judgment with great celebration, religious bodies across the country agitate against it. For now, the decision is likely only to be effective in Delhi and is still subject to appeal in the Supreme Court. However, inclusiveness and equality have been pronounced to be the hallmarks of modern Indian society. It is a historic day not just for India, but for those in pursuit of equality everywhere.

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