Repeal of Discriminatory Law a Historic Victory for LGBT Rights in India


Repeal of Discriminatory Law a Historic Victory for LGBT Rights in India

July 9, 2009

In a landmark decision on July 2, the Delhi High Court decriminalized same-sex relationships in the Indian capital. The court struck down Section 377 of the Indian Penal Code, a 148-year-old law that was effectively used to legitimize the discrimination and harassment of homosexuals and other sexual minorities. After the verdict was announced, celebrations broke out in major cities across the country, with gay rights activists and their supporters hailing the decision as a great victory for lesbian, gay, bisexual, and transgender (LGBT) rights.

Section 377 was written and implemented under the ruling British government in India. By outlawing what it called "unnatural offences" of sexual conduct, the law deemed homosexuality and other non-procreative sexual behaviors perverse and illegal. Those convicted under Section 377 faced a penalty of up to ten years in prison.

Though the judicial precedent for the law was overturned in the U.K. in 1967, Section 377 remained on the books in independent India. Few people engaging in consensual same-sex relationships have been convicted under Section 377 in recent years, but it has been used as an instrument of police abuse and intimidation, and it has promulgated feelings of disempowerment and shame in the LGBT community.

According to the courts, by prohibiting and stigmatizing homosexuality, Section 377 tacitly endorses attitudes and acts of prejudice and thus violates the constitution, which guarantees equal treatment for all. The judges stated in their decision, "If there is one constitutional tenet that can be said to be the underlying theme of the Indian Constitution, it is that of 'inclusiveness' … The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognizing a role in society for everyone. Those perceived by the majority as 'deviants' or 'different' are not on that score excluded or ostracized."

The decision referred to the pervasive intolerance of homosexuality in India, and rejected it as a legitimate justification for Section 377. The court averred, "Moral indignation, howsoever strong, is not a valid basis for overriding individuals' fundamental rights of dignity and privacy. In our scheme of things, constitutional morality must outweigh the argument of public morality, even if it be the majoritarian view." By championing the rights of marginalized sexual minorities, the Delhi High Court upheld the constitutional assurance of equality for every Indian citizen under the law.

AJWS's partners take the lead in the campaign for equal rights

Many of AJWS's partners in India have been at the forefront of the movement to repeal Section 377, which has gained momentum in recent years. Representing a cross-section of voices—including HIV/AIDS activists, sexual minority groups, sex workers' collectives and women's right's organizations—several of AJWS's grantees have engaged in advocacy on the local and national levels to repeal Section 377 and abolish the discrimination the law authorizes.

One of AJWS's grantees, Salaam Initiative, built civic support for the decriminalization of homosexuality and held campaigns against Section 377 to raise awareness in their communities. Salaam Initiative's objective is to empower sex workers, LGBT individuals and people living with HIV/AIDS to advocate for their rights. The organization gathered information and stories of torture and oppression of sexual minorities, which were used as evidence in the Delhi court proceedings against Section 377. Maintaining its commitment to grassroots change, Salaam Initiative lobbied the foundation that filed the suit in the High Court to consult smaller organizations as it built its case against Section 377. In addition, Salaam Initiative organized "PRIDE Bangalore" as part of a coalition for LGBT people and sex workers. Several members of the coalition traveled to New Delhi as the case was being debated in court, in order to foster solidarity among various groups that have been fighting to end Section 377. After the decision was announced, one coalition member rejoiced, "I feel freer already."

Last Thursday's judgment is certainly a significant milestone, but AJWS's partners recognize that the battle for equal rights is not yet won. Attitudes prove difficult to change, especially in traditional villages where there is a heavy stigma attached to homosexuality. One of AJWS's partners that is based in the rural northwest region of Uttar Pradesh reports that members of the religious clergy have attacked the court's decision, claiming that the ruling is offensive to the Indian culture and that homosexual behavior will not be accepted.

The Delhi High Court's decision only nullifies Section 377 within its zone of jurisdiction, so beyond the limits of New Delhi, homosexuality is still a crime by law. Gay rights groups hope that the ruling will catalyze legislative action that will strike Section 377 from the Indian Penal Code and legalize consensual same-sex relationships across the country.

"This is the first step, a beginning for LGBT rights," says Amitava Sarkar, the director of Santi Seva, an organization that focuses on capacity-building for transgender communities at high risk for HIV infection. "We still have a lot to fight for, especially in rural areas. In fact, Section 377 means very little to LGBT people in rural areas, who are struggling for food, education and health. Still, the society is not prepared to accept LGBT people, so Section 377 is just the beginning."

—Rachel Wiseman