India: appalling judgment recriminalizes same-sex consensual acts between adults in private

The ICJ is profoundly concerned at the judgment of 11 December 2013 of the Supreme Court of India, which effectively recriminalizes consensual same-sex sexual conduct between adults in private.

The decision by India’s highest court in Suresh Kumar Koushal and another v NAZ Foundation and others overturned the 2009 decision of the Delhi High Court.

That earlier judgment had held section 377 of the Indian Penal Code to be unconstitutional to the extent that it violated the rights to equality before the law, non-discrimination, life and personal liberty guaranteed by the Indian Constitution.

Section 377 criminalized certain consensual sexual acts in private between adults that are particularly associated with same-sex conduct.

The 2009 High Court’s ruling had the effect of decriminalizing such conduct between adults in private in India.

Its decision was based on an in-depth analysis of India’s obligations under international human rights law and standards, as well as international comparative law.

The High Court had examined the scope of the rights to equality, non-discrimination and personal liberty under the Indian Constitution and determined Section 377 to be unconstitutional.

Section 377, which was enacted in 1860, is a historical relic from colonial times bequeathed to India under the British empire; it made it an offence to voluntarily have “carnal intercourse against the order of nature” with any man, woman or animal.

Those convicted are liable to imprisonment for up to 10 years or for life and a fine.

The Supreme Court decision of 11 December reversed the High Court’s courageous and much celebrated decision.

Purporting to uphold the separation of powers, the judgment of the Supreme Court overturned the High Court by ruling that it acted in excess of its judicial review jurisdiction by failing to exercise restraint and to accord the necessary deference to the Indian legislature in its review of the constitutionality of section 377.

The Court effectively holds that the provision is not inconsistent with human rights and India’s obligations under international human right law, and that it is up to the Indian Parliament to amend or repealed it.

The ICJ is deeply troubled by the reasoning of the Supreme Court judgment.

It would appear to constitute an abdication of the essential role of the judiciary in safeguarding human rights.

In this case, the Court failed to uphold and protect the rights to equality and non-discrimination; equality before the law and equal protection of the law; dignity; privacy; freedom of expression and association; family life; and the highest attainable standard of health.

The judgment is inconsistent with India’s obligations under international human rights law.

The judgment also disconcertingly dismisses without apparent reason the wealth of evidence before the court documenting how the criminalization of same-sex sexual conduct leads directly to human rights violations.


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