Indian court overturns anti-sodomy law

Thursday, July 02, 2009

The Indian High Court in Delhi has ruled that homosexual intercourse between consenting adults is not a criminal act.

The ruling overturns a colonial era 1861 law which describes sodomy and oral sex as “unnatural offences”.

The judges stated:

At its least, it is clear that the constitutional protection of dignity
requires us to acknowledge the value and worth of all individuals as members of
our society. It recognises a person as a free
being who develops his or her
body and mind as he or she sees fit. At the root of the 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 expression “dignity of the individual”
finds specific mention in the Preamble to the Constitution of India.

There is a growing jurisprudence and other law related practice that
identifies a significant application of human rights law with regard to people
of diverse sexual orientations and gender identities. This development can be
seen at the international level, principally in the form of
practice related
to the United Nations – sponsored human rights treaties, as well as under the
European Convention on Human Rights. The sexual orientation and gender identity
–
related human rights legal doctrine can be categorised as follows:
(a)non-discrimination; (b) protection of private rights; and (c) the ensuring of
special general human rights
protection to all, regardless of sexual
orientation or gender identity.

The court cited the Jogjakarta principles:

The Yogyakarta Principles define the expression “sexual orientation” and
“gender identity” as follows:
“Sexual Orientation” is understood to refer to
each person’s capacity for profound emotional, affectional and sexual attraction
to, and intimate and sexual relations with, individuals of a different gender or
the same gender or more than one gender;”
“Gender Identity” is understood to
refer to each person’s deeply felt internal and individual experience of gender,
which may or may not correspond with the sex assigned at birth, including the
personal sense of the body (which may involve, if freely chosen, modification of
bodily appearance or function by medical, surgical or other means) and other
expressions of gender, including dress, speech and mannerisms.”

The Principles recognise:
 Human beings of all sexual orientation
and gender identities are entitled to the full enjoyment of all human
rights;
 All persons are entitled to enjoy the right to privacy, regardless
of sexual orientation or gender identity;
 Every citizen has a right to take
part in the conduct of public affairs including the right to
stand for
elected office, to participate in the formulation of policies affecting their
welfare, and
to have equal access to all levels of public service and
employment in public functions, without
discrimination on the basis of sexual
orientation or gender identity.

The court held that the law:

denies a person’s dignity and criminalises his or her core identity solely on
account of his or her sexuality and thus violates …the Constitution. As it
stands, [the law] denies a gay person a right to full personhood which is
implicit in notion of life under … the Constitution.

The court stated:

The studies conducted in different parts of world including India show that
the criminalisation of same-sex conduct has a negative impact on the lives of
these people. 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. There is extensive material
placed on the
record in the form of affidavits, authoritative reports by well
known agencies and judgments that testify to a widespread use of [the law] to
brutalise MSM and gay community….

The criminalisation of homosexuality condemns in perpetuity a sizable
section of society and forces them to live their lives in the shadow of
harassment, exploitation, humiliation, cruel
and degrading treatment at the
hands of the law enforcement machinery.

The court talked of the growing consensus to decriminalise anti-gay
laws:

Since 1967 the process of change has informed legal attitude towards
sexual orientation. This process has culminated in the de-criminalisation of
sodomy in private between consenting adults, in several jurisdictions. The
superior courts in some of these jurisdictions have struck
down anti-sodomy
laws, where such laws remain on the statute book. In 1967 in England and Wales
and in 1980 in Scotland sodomy between consenting adult males in private was
de-criminalised.

However, in Northern Ireland the criminal law relating to sodomy
remained unchanged. In 1982, in pursuance of the decision of the ECHR in Dudgeon
v. United Kingdom (supra), sodomy between adult consenting males in private was
de-criminalised in Northern Ireland. The same conclusion was reached in 1988 in
Norris v. Ireland (supra) and Ireland repealed sodomy laws in 1993.

Laws prohibiting homosexual activity between consenting adults in
private having eradicated within 23 member-states that had joined the Council of
Europe in 1989 and of the 10
European countries that had joined since (as at
10th February, 1995), nine had de-criminalised sodomy laws either before or
shortly after their membership applications were granted.

In Australia, all the States with the exception of Tasmania, had by 1982
de-criminalised sexual acts in private between consenting adults and had also
passed antidiscrimination laws which prohibited discrimination on the ground,
amongst others, of sexual orientation. Tasmania
repealed offending sections
in its Criminal Code in 1997 in view of the decision of United Nations Human
Rights Committee in Toonen v. Australia.

Consensual sexual relations between adult males have been de-criminalised
in New Zealand.

In Canada, consensual adult sodomy (“Buggery”) and so-called “gross
indecency” were decriminalised by statute in 1989 in respect of such acts
committed in private between 21 years and older which was subsequently brought
down to age of 18 years or more.

In United States of America though the challenge to sodomy laws was turned
down in Bowers v. Hardwick (supra), but subsequently in Lawrence v.Texas, the
sodomy laws insofar as between consenting adults in private were struck
down.

A number of open democratic societies have turned their backs to
criminalisation of sodomy laws in private between consenting adults despite the
fact that sexual orientation is not expressly protected in the equality
provisions of their constitutions. Homosexuality has been de-criminalised in
several countries of Asia, Africa and South America. The High Court of Hongkong
in its judgments in Leung T.C.William Roy v. Secy for Justice, dated 24th
August, 2005 and 20th September, 2006 struck down similar sodomy laws. To the
same effect is the judgment of the
High Court of Fiji in Dhirendra Nandan
& Another v. State, Criminal Appeal Case No. HAA 85 & 86 of 2005,
decided on 26th August, 2005. Nepalese Supreme Court has also struck down the
laws criminalising homosexuality in 2008 [Supreme Court of Nepal, Division
Bench, Initial Note of the Decision 21.12.2007].

On 18th “December, 2008, in New York, the UN General Assembly was
presented with a statement endorsed by 66 States from around the world calling
for an end to discrimination based on sexual orientation and gender identity.
The statement, read out by the UN Representative for Argentina Jorge Arguella,
condemns violence, harassment, discrimination, exclusion, stigmatisation, and
prejudice based on sexual orientation and gender identity. It
also condemns
killings and executions, torture, arbitrary arrest, and deprivation of economic,
social, and cultural rights on those grounds. The statement read at the General
Assembly reaffirms existing protections for human rights in international law.
It builds on a previous joint statement supported by 54 countries, which Norway
delivered at the UN Human Rights Council in 2006. UN High Commissioner for Human
Rights, who addressed the General Assembly via
a video taped message
stated:
“Ironically many of these laws, like Apartheid laws that criminalised
sexual relations between consenting adults of different races, are relics of the
colonial and are increasingly recognised as anachronistic and as inconsistent
both with international law and with traditional values of dignity,
inclusion and respect for all.”