Indian High Court Dismisses Sodomy Law Challenge
International
Gay and Lesbian Human Rights Commission (IGLHRC), September 4,
2004
http://www.iglhrc.org/site/iglhrc/section.php?id=5&detail=518
Contacts: Paula Ettelbrick, IGLHRC
212.216.1256
Vivek Divan, Lawyers Collective
HIV/AIDS Unit, Mumbai, India
aidslaw@lawyerscollective.org
New York—On September 2, 2004,
Indian human rights advocates suffered a disappointing setback when the Delhi
High Court dismissed a legal challenge to Section 377 of the Indian Penal
Code, India’s sodomy law. The Court claimed that the validity of the sodomy
law could not be challenged by anyone “not affected by it.” The case was
filed by two prominent Indian organizations that represent the interests of
men who have sex with men, the Naz Foundation International and the National
AIDS Control Organization. According to the Court, since no sodomy charge had
been filed against the groups, they lacked standing to challenge the law.
Section 377 punishes acts of sodomy, buggery and
bestiality. Although it criminalizes these acts committed by anyone, the law
is commonly used to target, harass and punish lesbian, gay, bisexual and
transgender persons.
“The Court has clearly decided that the sexual rights
of Indian citizens are not worth its time and attention,” stated Paula
Ettelbrick, Executive Director of the International Gay and Lesbian Human
Rights Commission (IGLHRC), who is a lawyer by profession. “This is an
unacceptable insult, in particular, to the millions of lesbian, gay, bisexual
and transgender people in India forced to live under a social and legal regime
of stigma, shame and persecution because of their sexuality.”
According to Ettelbrick, the Court’s ruling cuts
against the clear dictates of international human rights law as well as a
growing trend to recognize the constitutional violations imposed by sodomy
laws. In 1994, the United Nations Human Rights Committee set an international
precedent when it decided in Toonen v. Australia that Tasmania’s sodomy law
violated the International Covenant on Political and Civil Rights, the prime
international human rights treaty. The European Human Rights Court ruled in
1988 in Norris v. Ireland that the country’s sodomy law violates the
European Convention on Human Rights and Fundamental Freedoms. Both the South
African (1998) and United States (2003) Supreme Courts cited the subordination
and persecution particularly suffered by lesbians and gay men in ruling that
sodomy laws violate fundamental constitutional rights.
The Indian case began in June 2001, when police in the
city of Lucknow raided and sealed the offices of Naz and NACO, and arrested
four workers. The police also raided the various cruising areas of Lucknow and
arrested seven people. The four arrested workers were charged with conspiring
to commit “unnatural sexual acts” under Section 377 of the Indian Penal
Code. They were also charged with at least four other counts of obscenity
because safer-sex educational materials were found on their premises and were
construed as pornography. The AIDS workers were kept in captivity for more
than 45 days and were refused bail twice before being granted bail by the High
Court.
Even since the arrests, IGLHRC has steadily worked with
Indian activists, including members of Naz, to mobilize around to the
necessity of overturning the sodomy laws. IGLHRC and the Lawyers Collective
HIV/AIDS Unit, who represented the groups in the legal challenge, organized a
panel held at the World Social Forum in Mumbai in January 2004 to discuss and
formulate local and global strategies for supporting the case.
IGLHRC’s mission is to secure the full enjoyment of the
human rights of all people and communities subject to discrimination or abuse
on the basis of sexual orientation or expression, gender identity or
expression, and/or HIV status. An US-based non-profit, non-governmental
organization (NGO), IGLHRC effects this mission through advocacy,
documentation, coalition building, public education, and technical assistance.
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