Landmark Decision in India Decriminalizing Sex between Same-Sex Partners

By Bhavani Raveendran

The High Court of Delhi handed down a landmark decision on July 2, 2009, immediately igniting fierce debate throughout India. The opinion in Naz Foundation v. Government of NCT Delhi declared that Section 377 of the Indian Penal Code violated the Indian Constitution. Section 377 criminalizes private sexual acts between consenting, same-sex adults. After a decade-long campaign with other gay rights advocates and AIDS awareness organizations, the Naz Foundation (India) Trust (Naz India) brought a public interest suit against many local and national government authorities. The petition claimed that Section 377 violated Articles 14, 15, 19, and 21 of the Indian Constitution. Named defendants included the National Ministry of Health and Family Welfare.

In response, the Indian government set up a group of ministers to decide the merits of Naz India’s challenge, but the Union Cabinet and the Ministers chose to let the Supreme Court handle the matter. However, the Union Cabinet sent Attorney General, Goolam Essaji Vahanvati, to assist in the formulation of an opinion. In a move which gave hope to advocates of the decision, the Indian government decided to step back from the controversial issue and not challenge the decision in the Supreme Court.

Many NGOs and private citizens have opposed the ruling, including Swami Ramdev, a spiritual teacher, and the Delhi Commission for Protection of Child Rights. The Indian Supreme Court faces enormous pressure from a number of religious groups, including Hindu, Muslim, Sikh, and Christian organizations, many of whom find themselves on the same side of an issue for the first time. The foremost university for Islamic education in India, Darul Uloom Deoband, strongly opposes the ruling, as does the government’s main opposition party, the Hindu nationalist Bharatiya Janata Party. Many argue that decriminalization and legal acceptance of same-sex partnerships will tear away at the social fabric of India and its deeply religious culture.

The Indian Supreme Court also faces pressure from international groups to uphold the Delhi High Court’s ruling. The United Nations Joint Programme on HIV/AIDS has heralded the High Court decision as a noteworthy step in the fight against HIV and AIDS.

Neither the Indian Supreme Court nor the government agencies involved have specified when the final challenges will be heard or when the final decision will be handed down. Regardless of the outcome, the government is unlikely to dispute the decision. In the meantime, the Indian government must find some way to appease the religious and cultural groups who fervently oppose the decision.

According to the International Gay and Lesbian Association’s 2009 Survey of State Sponsored Homophobia, 80 countries, including India, still criminalize sex between consenting adults of the same sex. Twenty-two of those 80 countries are in Asia and the Middle East. In seven of them, same-sex intercourse is punishable by death. In many countries, “being gay” is considered a Western lifestyle that would be unheard of without European and American influence. If the Indian Supreme Court stands by the Delhi High Court’s opinion, the decision will serve as an example among traditionally conservative countries, demonstrating the possibility of accepting same-sex partnerships while maintaining traditional values and cultural identity.

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  1. Fantastic to see this politically unpopular ruling coming down from the high court. I would be interested to know on what legal basis the court’s decision relied upon.

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