(New York) – India’s Supreme Court agreed on February 2, 2016, to hear an appeal of its 2013 decision that upheld a discriminatory law criminalizing same-sex relations, Human Rights Watch said today. The Indian government should file an affidavit with the court to set aside the country’s “sodomy” law and uphold the fundamental rights of lesbian, gay, bisexual, and transgender (LGBT) people.
“The Supreme Court has provided real hope to LGBT people in India by agreeing to review its 2013 ruling that favored discrimination over equal rights for all,” said Meenakshi Ganguly, South Asia director at Human Rights Watch. “The Indian government should seize the opportunity and weigh in to make clear that discrimination, harassment, and other abuses of LGBT people have no place in contemporary society.”
The law, section 377 of the Indian penal code, punishes “carnal intercourse against the order of nature” with up to life in prison. The law had been struck down in 2009 by the Delhi High Court, which said the law was a violation of fundamental rights to equality, nondiscrimination, life, and personal liberty guaranteed by the Indian constitution. The court had noted how criminalization of same-sex relations had a negative impact on the lives of LGBT people.
The 2009 ruling said: “Even when the penal provisions are not enforced, they reduce gay men or women to what one author has referred to as ‘unapprehended felons,’ thus entrenching stigma and encouraging discrimination in different spheres of life. Apart from misery and fear, a few of the more obvious consequences are harassment, blackmail, extortion and discrimination.”
The Indian government chose not to challenge the High Court judgment. But following appeals against the verdict by some individuals and religious groups, a two-judge panel of the Supreme Court overturned that decision in 2013, ruling that amending the law was the responsibility of the legislature. Human rights activists, lawyers, and medical professionals filed curative petitions to revise the previous ruling, saying that section 377 denies privacy and dignity, and that upholding it results in a miscarriage of justice.
So long as it’s on the books, section 377 will reinforce the idea that discrimination and other mistreatment of LGBT people is acceptable in Indian society. Human rights and the dignity of LGBT people need to prevail over this terrible colonial legacy.
South Asia director
On February 2, 2016, the Supreme Court admitted the curative petitions that challenge its 2013 decision, reviving the legal battle for the repeal of the law. Chief Justice T.S. Thakur said that the petitions pose questions with “constitutional dimensions of importance,” and referred the petitions to a five-judge Constitution Bench for detailed hearing.
Since the 2013 ruling, the legislature has not acted on the law and LGBT people in India continue to suffer widespread discrimination. On December 18, 2015, the lower house of parliament refused to allow a member to even introduce a bill proposing to review section 377.
In January, a 15-year-old boy set himself on fire after neighbors teased and harassed him for being seen with a male partner. Section 377 contributes to a social environment in which such tragic incidents occur, Human Rights Watch said.
“So long as it’s on the books, section 377 will reinforce the idea that discrimination and other mistreatment of LGBT people is acceptable in Indian society,” Ganguly said. “Human rights and the dignity of LGBT people need to prevail over this terrible colonial legacy.”