GENEVA (12 December 2013) – United Nations High Commissioner for Human Rights Navi Pillay on Thursday expressed her disappointment at the re-criminalisation of consensual same-sex relationships in India following a judgment by the Indian Supreme Court in the case of Suresh Kumar Koushal and another v. Naz Foundation and others.
“Criminalising private, consensual same-sex sexual conduct violates the rights to privacy and to non-discrimination enshrined in the International Covenant on Civil and Political Rights, which India has ratified. Yesterday’s Supreme Court decision in this case represents a significant step backwards for India and a blow for human rights,” Pillay said.
The Supreme Court had been asked to examine the constitutionality of Section 377 of the Indian Penal Code, which provides for the punishment of those found guilty of “unnatural offences”. The law, originally introduced by the British colonial administration over 150 years ago, was used to criminalise same-sex relationships.
In 2009, the Delhi High Court had struck down Section 377 in so far as it applied to sexual conduct between consenting adults in private, on the basis that criminalising such conduct is incompatible with the fundamental principles of equality, dignity and non-discrimination enshrined in the Indian Constitution. The matter was referred to the Supreme Court on appeal.
In its decision announced yesterday, the Supreme Court declared Section 377 to be constitutionally valid, thereby overturning the 2009 High Court decision and re-instating Section 377, thus re-criminalising consensual, private same-sex sexual conduct.
“The Supreme Court of India has a long and proud history of defending and expanding protection of human rights. This decision is a regrettable departure from that tradition,” Pillay said.
The High Commissioner expressed hope that the Court might exercise its review procedure, in effect agreeing to rehear the case before a larger panel of judges. Such a review would provide an opportunity for judges to reconsider whether the Supreme Court’s initial decision took sufficient account of all relevant arguments.
In the broader context, the High Commissioner encouraged the Indian Parliament to take definitive action to decriminalise same-sex sexual conduct. She stressed the need to ensure effective protection for lesbian, gay, bisexual, transgender and intersex individuals from violence and discrimination.
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