Statement on the Indian Supreme Court decision on Section 377Published on Monday, 16 December 2013 16:24
On 11 December 2013, the Supreme Court of India overruled the 4-year old decision of the Delhi High Court, which had struck down India’s anti-sodomy law, Section 377 of the Indian Penal Code. As former members of the Global Commission on HIV and the Law, we write to convey our great dismay at this regressive step taken to dismantle a beacon of human rights articulation that was the Delhi High Court judgement.
Either through legislative or judicial action, progressive democracies all over the world have spent the last few decades removing such laws, in realization of the facts: that these laws are vestiges of colonial notions of sexuality, which science and evidence tell us are archaic; that their removal is essential if all members of society are to reach their full human potential; and, that the ability of lesbian, gay, bisexual and transgender (LGBT) people to benefit from social participation is incumbent on such removal.
We spoke of these issues in the context of HIV and AIDS in our report of July 2012. Today we make this statement to emphasize that health imperatives are indeed a crucial reason to reject misguided laws such as Section 377 that punish consensual adult sex, but also that other human rights are egregiously violated when such laws are allowed to continue on the books.
Laws such as Section 377 make it onerous for HIV and other health services to be accessed or to reach individuals and groups most at risk of infection, thereby severely compromising their health. As our report points out, where criminal laws like Section 377 exist, prevalence of HIV among men who have sex with men is much higher than in jurisdictions where such laws are absent. As crucially, criminalizing the behaviour of a group of people for no justifiable reasons other than their unpopularity violates their very being in numerous ways.
Such laws perpetuate the inequality of LGBT people, they curtail their ability to function autonomously and free of fear and coercion, and they undermine the ability to express their innate gender identities and sexualities. The decision of the Indian Supreme Court will drive millions of LGBT Indians towards such injustice, and into a shadowy existence of lives lived in indignity and falsehood. By suggesting that it is for parliament to decide on retaining or removing Section 377, the Indian Supreme Court has articulated an atypical approach, removed from the great tradition of judicial review through public interest litigation developed by it over the last several decades and admired globally.
We join the United Nations High Commissioner for Human Rights in calling for the Indian Supreme Court to review its decision and uphold the Delhi High Court verdict at the earliest so that more lives are not damaged by a law that should be moribund in one of the flourishing democracies of the 21st century.
The following individuals served as Commissioners for the Global Commission on HIV and the Law and make this statement in their individual capacity:
Mr. Fernando Henrique Cardoso
Ms. Ana Helena Chacón-Echeverría
Mr. Charles Chauvel
Ms. Shereen El Feki
Ms. Bience Gawanas Dame Carol Kidu
Hon. Michael Kirby
Ms. Barbara Lee
Mr. Stephen Lewis
Mr. JVR Prasada Rao
Ms. Sylvia Tamale
Mr. Jon Ungphakorn