Home -> Law Blog Directory -> Religion & Law Blogs -> Religion Clause

Religion & Law

: Religion Clause

Court In India Strikes Down Law Banning Consensual Adult Homsexual Relations

By Howard M. Friedman

In India, the Delhi High Court today struck down as unconstitutional Section 377 of the Indian Penal Code insofar as it bans homosexual sexual acts in private between consenting adults. (Background.) In a 105-page opinion in Naz Foundation v. Government of NCT of Delhi, (High Ct. Delhi, July 2, 2009), the court cites extensively not just to Indian precedent, but to that in the U.S. Britain and other Commonwealth countries. The court concluded that the challenged provision, infringes the right to privacy guaranteed by Section 21 of India's Constitution as well as Section 14 (equality before the law) and 15 (discrimination on the basis of sex) of the Indian Constitution. It writes:

If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of 'inclusiveness'. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as ?deviants' or 'different' are not on that score excluded or ostracised.

Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and nondiscrimination. ..... In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.

The law at issue was enacted in the 19th century when India was a British colony. The challenge was brought by a group working on HIV/AIDS prevention. The court described petitioner's contentions, in part, as follows:

Section 377 IPC is based upon traditional Judeo-Christian moral and ethical standards, which conceive of sex in purely functional terms, i.e., for the purpose of procreation only. Any non-procreative sexual activity is thus viewed as being "against the order of nature?. The submission is that the legislation criminalising consensual oral and anal sex is outdated and has no place in modern society.... Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.

Bloomberg today reports on the court's decision. Indian Express reports on the reactions of various religious leaders in India to the decision.

Full post as published by Religion Clause on July 02, 2009 (boomark / email).