London, 13 December 2013
On 11 December 2013, the Indian Supreme Court issued its judgment in Suresh Kumar Koushal and another v NAZ Foundation and others, an appeal of the much celebrated decision of the Delhi High Court in 2009 to overturn a sodomy law which had criminalised same-sex sexual conduct.
In a ruling which has sent shock waves through the equal rights community, the Supreme Court held that the Delhi High Court had been wrong, that the law was not a violation of fundamental rights and that it could only be amended or repealed by Parliament. As a result, India has been propelled backwards onto the list of now 77 countries which continue to criminalise same-sex sexual conduct.
The case concerned the constitutionality of Section 377 of the Indian Penal Code 1860, a law hailing from the time of the British administration of India. Section 377 creates an offence of voluntarily having “carnal intercourse against the order of nature” with any man, woman or animal, punishable by up to ten years imprisonment or a fine. Among other things, the law has been used to prosecute consenting gay men. In 2004, the Naz Foundation – a non-governmental organisation working in the field of HIV/AIDS intervention and prevention – petitioned the Delhi High Court, seeking a declaration that section 377 was unconstitutional to the extent that it penalised sexual acts in private between consenting adults as it violated the rights to equality before the law, non-discrimination, life and personal liberty and other rights which are protected by the Indian Constitution (Articles 14, 15, 21 and 19 respectively).
In 2009, in a landmark judgment, the Delhi High Court declared that section 377 was invalid to the extent that it applied to consensual same-sex sexual conduct between adults across all of India. Effectively, same-sex sexual conduct was thus decriminalised in India. In a progressive and well-reasoned decision, the High Court relied on international law, legal developments in other jurisdictions and international standards including the Yogyakarta Principles and the Declaration of Principles on Equality, in finding a violation of the rights to equality, non-discrimination and personal liberty under the Indian Constitution. However, the decision was appealed to the Supreme Court.
On 11 December, in a decision which clearly violates India’s obligations under international human rights law, the Supreme Court, constituted of a bench of two judges, overturned the High Court’s decision and reinstated section 377, re-criminalising same-sex sexual conduct in India. Despite acknowledging the power of the High Court and other courts to declare laws unconstitutional, the Supreme Court did not analyse in depth the consistency of section 377 with Articles 14, 15 and 21 of the Indian Constitution, and focussed instead on the history of section 377, claiming that it has not been shown that it discriminated against gay people.
ERT notes with particular frustration that the little analysis offered in relation to the right to equality was fundamentally misconceived. ERT also expresses its deep concern at the attitude of the court to LGBT persons evidenced by its reference to the “so-called rights” of LGBT persons. Unless the Supreme Court exercises its review procedure and corrects this decision, activists now face the difficult task of seeking to persuade Parliament to urgently legislate to change the law.
ERT shares the disappointment and frustration felt by the community of activists in India and around the world striving for the realisation of equal rights for all regardless of sexual orientation. It strongly condemns this huge leap backward and urges the Supreme Court to review the case.
Bob Hepple, Chair of ERT’s Board of Trustees said:
“After the careful analysis by the Delhi High Court, this Supreme Court ruling comes as a shock. The 98-page judgment lacks any adequate analysis of the place of fundamental rights in the Indian Constitution and overlooks Article 15 (guarantee of non-discrimination). Instead the judgment is cloaked in the language of judicial restraint and misapplies the presumption of constitutionality. The Supreme Court must review this decision, failing which there needs to be international pressure on the Indian government to repeal this colonial legislation.”
To read ERT's Case Summary, click here
To read the Supreme Court's judgment, click here
