New Delhi, September 9— The unanimous Indian Supreme Court judgment which ended the ban on consensual gay sex in private is a landmark verdict which is a “call to action” for all countries in the Commonwealth which still use regressive, outdated colonial law, the Commonwealth Human Rights Initiative (CHRI) said today.
In a statement, CHRI hailed the judgment, noting that it had immense transnational relevance across Commonwealth states, where not less than 36 of 53 members continue to criminalize same-sex acts.
“CHRI believes that it is imperative for the Commonwealth to set a new trend for law based on the Section 377 verdict, and calls on the UK as the current chair of the Commonwealth and Patricia Scotland, the Commonwealth Secretary General, to take a lead on this matter” said Sanjoy Hazarika, CHRI’s International Director.
He noted that at CHOGM 2018, British Prime Minister Theresa May’s opening address had emphasized that discriminatory laws criminalizing same-sex relations “continue to affect the lives of many people” and which “were often put in place by the United Kingdom during its colonial rule”. Ms. May had expressed “regret” after a campaign by LGBT activists around the world who wanted Britain to apologize over anti-sodomy laws which had harmed the lives of LGBTQ people in the former British colonies.
“The Commonwealth must spread awareness and design the architecture of societies where prejudice and discrimination on the basis of sexual orientation does not take place,” said Mr. Hazarika. Same sex relationships are banned, among other countries, in Pakistan, Singapore, Nigeria, Kenya, Tanzania, Uganda, Papua New Guinea and Jamaica.
The judgment came nine years after the ruling in the 2009 Naz Foundation case by the former Chief Justice of the Delhi High Court, Justice Ajit Prakash Shah, who is a current member of CHRI’s executive committee, and Justice S. Muralidhar. Justice Shah’s opinion from the Naz Foundation case bears reiteration: “Popular morality or public disapproval of certain acts is not a valid justification for restriction of the fundamental rights under Article 21. Popular morality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. If there is any type of ‘morality’ that can pass the test of compelling state interest, it must be ‘constitutional’ morality and not public morality.”
In his judgement, Justice Dipak Misra, Chief Justice of India, affirmed that the “LGBT Community has same rights as of any ordinary citizen. Respect for each other’s rights, and others are supreme humanity. Criminalising gay sex is irrational and indefensible.” According to Justice Indu Malhotra, ” History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered.”
The Supreme Court here is seen as an international trendsetter in law innovation. . It has taken India 170 years to arrive at such a decision despite Indian mythology having elements of gender variance and non-heterosexual sexuality. Homosexuality and LGBT themes have been reflected in ancient Indian literature and folk tales, as well as in the performing arts.
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About the Commonwealth Human Rights Initiative
Headquartered in New Delhi, with offices in London and Accra, The Commonwealth Human Rights Initiative (CHRI) is an independent, non-government, international, non-profit organisation committed to protecting and promoting human rights in Commonwealth nations. CHRI works towards strengthening access to justice (through prison and police reforms) and building a culture of transparent governance (through the Right to Information). CHRI also monitors human rights-related trends and developments across the Commonwealth and makes formal submissions to treaty bodies and inter-governmental agencies, including the United Nations Human Rights Council.