The Indian government has filed a petition in the Supreme Court in India, asking it to review its decision to reinstate a 153-year-old law that criminalises homosexuality.

Melbourne-based public health lawyer Dr Fiona Lander, who has previously worked in India, explains below why the criminalisation of homosexuality (in many countries a legacy of British colonial rule) is a critical public health concern.


Supreme Court judgment a giant step backwards for human rights in India

Fiona Lander writes:

In 2009, petitioners in the case of Naz Foundation vs Government of Nct of Delhi were jubilant when the Delhi High Court declared Section 377 of the Indian Penal Code unconstitutional, to the extent that it criminalised same-sex intercourse. Section 377, a relic of British rule, had been frequently used as a tool of oppression against minority groups.

Skip forward to 2013, and the same petitioners are devastated at the Indian Supreme Court’s decision to set aside the Delhi High Court’s verdict, effectively reinstating homosexual sex as a criminal offence throughout the country: a decision human rights campaigners are describing as a “bad reflection on the country”.

Section 377 of the Indian Penal Code, introduced in India 1861 by the British, criminalised certain “unnatural offences”. The provision prohibited “carnal intercourse against the order of nature”, which was judicially interpreted to include homosexual sex – along with any non-penile/vaginal, non-procreative sex. The original English law was reformed by the Sexual Offences Act in 1967, which decriminalised homosexuality between consenting adults.

Many human rights groups in India were concerned about the human rights implications of Section 377 – in particular, use of the law in a targeted fashion against those identified as homosexuals, which severely impeded HIV/AIDS prevention efforts.

For this reason, the Naz Foundation filed a public interest litigation writ in the Delhi High Court against the Government, claiming the laws violated the fundamental right to life and liberty encapsulated in Article 21 of the Indian Constitution, alongside other Constitutional provisions.

In its submission to the court, India’s National AIDS Control Organisation, together with the Ministry for Health, noted that India’s community of men who have sex with men were at particular risk of contracting HIV/AIDS. According to NACO, people at high risk of HIV/AIDS were reluctant to reveal same-sex behaviour due to the fear of law enforcement agencies, pushing cases underground and making it difficult for public health workers to contact at-risk individuals.

The Delhi High Court, in reaching its verdict in 2009, found that the provision did indeed infringe the Indian Constitution, and for that reason, the Court held that it had the power to declare the provision invalid in respect of its application to adult same-sex conduct. In its judgment, the Court explained that criminalisation of adult same-sex conduct did not serve any public interest, and that public health measures would in fact be strengthened by decriminalization.

The health effects of criminalisation of sexual behaviour cannot be underestimated. During the two years I spent working in Mumbai with Lawyers Collective, the legal NGO that spearheaded the legal challenge to Section 377, I had the opportunity to closely examine the effects of laws criminalizing same-sex behaviour throughout the world. The Indian experience is not an isolated one, with homosexual behaviour still outlawed in 78 countries.

In particular, in many former British colonies, sodomy remains a criminal offence.

According to Human Rights Watch, over half of the world’s remaining laws criminalising “sodomy” were, in fact, introduced by the British. The pernicious effects of these laws continue to be felt today, with rulers of these countries often stringently maintaining that homosexuality is antithetical to their continent’s culture, despite the fact that these laws were essentially a colonial import.

The submissions of NACO echo the experience of public health workers working throughout the world in these countries where homosexuality remains a crime. Individuals whose behaviour is criminalised are less likely to be able to access preventive health services, with state-sanctioned punishment against them reinforcing stigma and increasing discrimination.

The deleterious effects of these laws are far-reaching, and it is unfortunate that India’s Supreme Court has found that Section 377 “suffers no constitutional impunity”. Counsel for the Naz Foundation went so far as to say that the decision was not correct in law.

Although the Court’s verdict that Parliament is the appropriate body to amend such laws will find favour with many, there are concerns that the legislature will not be quick to legalise same-sex conduct – if they do so at all.

However, perhaps the most telling response to the Court’s decision came from those affected, who stated to media after the verdict was delivered:

Is judgment se hamara jeene ka adhikaar chin gaya hai – this verdict has taken away our right to life.

• Dr Fiona Lander is a doctor and lawyer in Melbourne, whilst completing research work in the fields of international public health law and the right to health. Fiona graduated from Monash University with dual honours in Medicine and Law, and worked as a senior team member for the UN Special Rapporteur on the right to health, Mr Anand Grover, in Mumbai, India for 2 years.You can follow her on Twitter: @fionalander