Indian High Court Relies on Declaration of Principles on Equality in Landmark LGBT Rights Decision

London, 2 July 2009

The Delhi High Court, in its landmark decision decriminalising homosexuality,  relied on concepts developed in the Declaration of Principles on Equality, launched by the Equal Rights Trust (ERT) in 2008.  In its judgment, the court described the Declaration as representing ‘current international understanding of Principles on Equality’, and cited in full the Declaration’s definitions of the “right to equality”, “equal treatment” and “discrimination”, in ruling that Section 377 of the Indian Penal Code was unconstitutional.

This case concerned a writ petition (a public interest action taken before the court) brought by an Indian NGO, NAZ Foundation, working with HIV/AIDS sufferers which argued that Section 377 of the Indian Penal Code was unconstitutional. Section 377 entitled “Of Unnatural Offences” has effectively been interpreted as criminalising consensual sexual acts between persons of the same sex.

Responding to the Court’s decision, ERT Executive Director Dimitrina Petrova said:

“This is a great day for LGBT rights in India and across the world; it’s a great day also for all those who value the fundamental notion of equality.

“The Court, by relying upon the Declaration of Principles on Equality, has underlined the value which these legal principles can have for anyone challenging discrimination.

“I am convinced that this judgment will resonate across other jurisdictions where forms of discrimination are still enshrined in national law.

“I also hope that members of the judiciary in other countries will find the Declaration of Principles on Equality useful in interpreting the fundamental right to equality and the concept of discrimination.”

Reflecting on the case, Anand Grover, Director of the Lawyers Collective HIV/AIDS in India, and Senior Advocate for NAZ, said:

“A new era has dawned in India.  As the judgment underscores it is dignity and inclusion that we have captured. The judgment is a lesson for other sectors; it will have repercussions in all parts of the world.”
To see the ERT case summary, click here.

NOTES

Court Decision:

1. Details of the case: Naz Foundation v. Government  of NCT of Delhi and Others, WP(C) No.7455/2001;

a. The case concerned a writ petition brought by an Indian NGO working with HIV/AIDS sufferers which argued the unconstitutionality of Section 377 of the Indian Penal Code. Section 377 is contained in a sub-section of the code (also known as the Macauly Code) entitled “Of Unnatural Offences”. It has effectively been interpreted as criminalising consensual sexual acts in private between persons of the same sex. The Code was enacted under British rule in 1861 (incidentally, the same year in which the death penalty for homosexual behaviour was removed from the laws of England and Wales).

b. The High Court of Delhi was deciding a case brought by writ petition in 2004.  At the time, the Court refused to make a decision and referred the case to the Constitutional Court.  The Constitutional Court referred the decision back, saying there was a public interest in the High Court making a ruling.

2. The Court concluded that Section 377 insofar as it criminalises consensual sexual acts of adults in private, violates Articles 14, 15 and 21 of the Constitution.

3. In paragraph 93 of its decision, the Court referred to the Declaration of Principles of Equality, drafted under the aegis of the Equal Rights Trust, and used this in determining the current international understanding of equality. The Court emphasised the inclusion of sexual orientation among the protected grounds, and the inclusion of indirect discrimination in the definition of discrimination.   It quoted in full the Declaration’s definitions of the right to equality, the concept of equal treatment and the definition of discrimination.

The Equal Rights Trust:

4. The Equal Rights Trust (ERT) is an advocacy organisation, resource centre and think tank which works to “combat discrimination and promote equality as a fundamental human right and a basic principle of social justice”. It is the only international human rights organisation focussed on the right to equality as such.

5. In October 2008, ERT launched the Declaration of Principles on Equality.  Drafted and signed by 128 human rights experts from 44 different countries, the Declaration represents the first international attempt to define the right to equality and the basic concepts which support it.   

6. The Declaration takes as its starting point the opening words of the Universal Declaration of Human Rights, that ‘all people are born free and equal in dignity and rights’.  The drafters sought to establish a positive, free-standing right to equality inherent to all, moving beyond the scope of traditional rights to non-discrimination on various grounds which have developed in many places. 

7. ERT has conducted advocacy and research work in several Indian states, and is currently involved in a project supported by the UK Foreign and Commonwealth Office to improve the implementation of the principles of equality and non-discrimination in India.

To VOTE FOR EQUALITY and sign the Declaration of Principles on Equality, click here.

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