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India court declares anti-sodomy law unconstitutional

By Bernard Hibbitts (editor) and University of Pittsburgh School of Law students.

[JURIST] The Delhi High Court on Thursday decriminalized homosexual conduct by declaring India's anti-sodomy law unconstitutional. In a petition originally filed and rejected by the court in 2004, the Naz Foundation challenged the applicability of Section 377 of the Indian Penal Code, a colonial-era law that punishes "carnal intercourse against the order of nature" with 10 years in prison and a fine. They had argued that using Section 377 to criminalize consensual adult sexual conduct ran counter to Article 21 of the Indian Constitution, which provides that "o person shall be deprived of his life or personal liberty except according to procedure established by law," as well as the equality under the law provided by Articles 14 and 15. Writing for the court, Justice S. Muralidhar agreed: In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.Muralidhar stressed that the ruling nullifies the application of Section 377 to consensual adult sex only, and does not apply to other sexually-based offenses, such as rape and sex with a minor. The court's decision is only binding within the Union Territory of Delhi, including the capital.The criminalization of homosexuality has been a divisive issue around the world. In April, an appeals court in Senegal ordered the release of nine members of AIDS awareness group AIDES Senegal who had been convicted of sodomy and sentenced to eight years in prison. In November, the parliament of Burundi voted to criminalize homosexuality, a move condemned by human rights groups. In December, the UN General Assembly was divided over the issue as 66 nations signed a statement calling for decriminalization, and nearly 60 nations signed an opposing statement.

Full post as published by JURIST - The Paper Chase on July 02, 2009 (boomark / email).