India HIV/AIDS Alliance (Alliance India) is deeply disappointed with the decision of the Supreme Court to set aside the historic Delhi High Court judgment of 2009 relating to Section 377 of the Indian Penal Code which had previously ruled that sexual relations between two consenting adults of the same sex in private is legal.
Section 377, a British pre-colonial era law, bans "carnal intercourse against the order of nature." Conviction carries a fine and a maximum 10 year jail sentence. The decision by the Supreme Court withdraws the protection of the Indian Constitution from the lesbian, gay, bisexual and transgender (LGBT) community and leaves them vulnerable to discrimination, violence, and harassment. The judgement contradicts basic principles of equality, dignity and human rights that India has affirmed repeatedly in national laws and international treaties.
"This is about the fundamental right of all people to engage in fulfilling sexual relations with consenting partners. Criminalization strips away the very identity of homosexuals, so that other rights cannot even be imagined," said Shaleen Rakesh, Director of Technical Support with India HIV/AIDS Alliance. Shaleen was instrumental in filing the original 2001 petition in Delhi High Court on behalf of the Naz Foundation India.
“It is a sad moment for millions of LGBT in the country. The fight will go on, and we will rally to regain the rights we deserve as equal citizens,” he added.
Reflecting these concerns, James Robertson, Executive Director of India HIV/AIDS Alliance, said: “The Supreme Court decision is a major step backwards that will have consequential impact on the lives of India's LGBT community. This regressive judgement will also hamper efforts to address HIV/AIDS. Despite many years of work, HIV prevalence remains high among men who have sex with men, as well as in transgender and hijra communities. This re-criminalisation will further hamper HIV prevention and will discourage vulnerable communities from accessing needed services."