Last edited: September 06, 2004

Indian High Court Dismisses Sodomy Law Challenge

International Gay and Lesbian Human Rights Commission (IGLHRC), September 4, 2004

Contacts: Paula Ettelbrick, IGLHRC

Vivek Divan, Lawyers Collective
HIV/AIDS Unit, Mumbai, India

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.

[Home] [World] [India]