5 Sep 2009

The Alien Legacy of Section 377

There have been media reports coming out in India that say that the government will not oppose in the Supreme Court, the Delhi High Court Verdict on Section 377 of The India Penal Code. NDTV has said that it has exclusive information that in a note prepared by the Cabinet, the government will tell the Supreme Court that it doesn't find any legal error with the Delhi High Court ruling that read down section 377, decriminalising homosexuality.It goes on to say that the government leaves it to the Supreme Court to take the final decision on the High Court's judgement, which said the consensual gay sex is legal.

LGBT activists in India say that if these reports are true, it is probably one of the best thing that can happen in the supreme court, and in our long march to decriminalisation but that we should be prepared for surprises.

The High Court of Delhi 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 and carried a penalty from 10 years to life in prison and a fine. This law will no longer apply 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.

The law was introduced 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. Although the law is silent on lesbianism, it has facilitated an environment where family violence against lesbians and bisexual women occurs, leading to women’s injury, death, and suicide.

Whilst 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.
Human Rights Watch have produced a report 'This Alien Legacy' which describes how laws in over three dozen countries, from India to Uganda and from Nigeria to Papua New Guinea, derive from a single law on homosexual conduct that British colonial rulers imposed on India in 1860

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