Summary: Analysis from a children's rights perspective of the debate in India on the 2009 ruling against the criminalisation of same-sex relations.
[24 February 2012] - India’s Supreme Court is currently hearing over a dozen petitions - including from a children's rights organisation - lodged to overturn a 2009 Delhi High Court ruling that decriminalises same-sex relations between consenting adults. Pro-gay rights activists, on the other hand, defend the progressive ruling as a landmark verdict.
The law in question is Section 377 of the Indian Penal Code on unnatural offences, which criminalises gay sex with a maximum sentence of life imprisonment. This law explicitly applies to consenting adults, but its impact inevitably also extends to lesbian, gay, bisexual and transgender (LGBT) children, who grow up knowing that once they reach the age of majority they will be persecuted because of their sexual orientation. Children of LGBT parents are also affected by the discrimination faced by their parents, and may even be directly targeted in retaliation.
A culturally entrenched condemnation or a misunderstanding of homosexuality often mistakenly deem that its legalisation will encourage children to "become" gay or will lead to a higher incidence of child abuse and paedophilia. Not surprisingly then, anti-gay rights groups that defend homophobic laws often spuriously claim to be acting on the basis of “child protection” and “public safety”. But in doing so, they fail to recognise the harm their actions can in fact cause children, as anti-gay legislation legitimises discrimination and hatred against the entire LGBT community, including LGBT children.
Homosexuality became illegal in India in 1860 through a statute introduced by British colonial rulers that banned “carnal intercourse against the order of nature.”
However, three years ago the Delhi High Court ruled against Section 377 on the basis that it violated Article 14 of the Indian Constitution on equality before the law and protection from discrimination, as it targeted a particular community – lesbians, gays, bisexuals and transgender (LGBT) persons.
But now anti-gay rights groups and political, social and religious organisations are challenging the ruling, including the Delhi Commission for Protection of Child Rights, which claims that legalising consensual sex between same-sex persons will adversely affect the rights of children, that the law is required to check the exploitation of children, and that upholding the ban would protect children against “moral and material abandonment”.
Contrary to the Delhi High Court’s rationale, the petitioners say that Section 377 was not invoked as an attack on LGBT persons, but against any man or woman that “indulges in carnal intercourse which is against the order of nature” and is uniformly applied as such. But pro-gay rights activists contend that this logic fails to recognise that the law unfairly singles out and affects the LGBT community.
What international law says
The UN Convention on the Rights of the Child – which India ratified in 1992 - sets out measures that States Parties must abide by to ensure the protection of children from discrimination and that their best interests are met.
Article 2 of the Convention addresses the issue of discrimination. Paragraph 2 stipulates: “States Parties shall take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents, legal guardians, or family members.”
As such, the article may be invoked in respect of both the discrimination faced by LGBT children, and that faced by children of LGBT parents.
The legal obligation to act “in the best interests of the child”, as outlined in Article 3 of the Convention, must include respecting the child’s right to be free from discrimination, including that based on sexual orientation.
The Committee on the Rights of the Child, in its Concluding Observations, has also made reference to States’ obligation to protect children from discrimination on the basis of sexual orientation.
The Yogyakarta Principles are a universal guide relating to sexual orientation and gender identity that affirms binding international legal standards with which all States must comply. Read the references to children in the Principles here.
Other treaties which prohibit discrimination on the basis of sexual orientation include the International Covenant on Civil and Political Rights (ICCPR), which India ratified in 1979. Although there is no express provision in the ICCPR, in the case Toonen v Australia, the UN Human Rights Committee held that the references to "sex" in Articles 2, paragraph 1 (on non-discrimination) and 26 (on equality before the law) should be taken to include sexual orientation.
A changing society
In its ruling against Section 377, the Delhi High Court based its rationale on international precedents, which the Delhi Commission for Protection of Child Rights argues was wrong because in doing so it ignored the reality of Indian society and its views on same-sex relationships.
Amarendra Saran, senior counsel appearing on behalf of the Delhi Commission, said the approach was "completely erroneous as there is a vast cultural difference in Indian society and other societies of the world". Indian society disapproves of homosexuality, he said, adding that law cannot run separately from society.
Similarly, additional solicitor general, PP Malhotra contended that “[i]n our country… homosexuality has always been looked at as a dirty thing, and has not been approved.”
"Our Constitution is different and our moral and social values are also different from other countries, so we cannot follow them," said Malhotra, stressing that societal disapproval of same-sex relations is a strong enough reason to criminalise it.
But the Supreme Court bench has countered that homosexuality should be seen in the context of a changing society, noting that many things which were previously considered unacceptable have now become acceptable. The bench illustrated its argument by referring to the recent phenomena of live-in relationships, single-parent households, and surrogacy.
Progressive strides towards recognising and protecting the human rights of LGBT persons in countries where homophobia is notoriously endemic have also been made elsewhere in the world. In Jamaica , for example, the newly-elected President Portia Simpson Miller has voiced her support for gay rights, saying that no one should suffer discrimination based on their sexual orientation, and vowing to review the country’s anti-gay laws. A 2004 report by Human Rights Watch documented how violent crimes against openly gay men were commonplace, and range from verbal and physical violence to murder. In such an environment, Simpson Miller’s comments - which were made prior to her election - could have been politically costly; yet her party won the elections by an overwhelming majority, thus signalling a possible shift in how contemporary Jamaican society views homosexuality.
Exposing the real harm
The Delhi Commission for Protection of Child Rights also invoked the notion that homosexuality is harmful to children and young people, saying that they are opposing the Delhi High Court’s ruling because they have a duty to safeguard against children’s “moral and material abandonment”.
A similar trend has also emerged recently in several Eastern European countries, including in Lithuania and the city of Saint Petersburg in Russia, which have both enacted laws to “protect” minors from gay “propaganda” and uphold what they consider to be traditional family values. For instance, the recently adopted Saint Petersburg bill prohibits “spreading information that can damage the health and moral development of underage children, and make them believe that both traditional and gay relationships are normal.”
Opposing this view in India in February 2011, were 19 parents of gay children who appeared before the Supreme Court to present their petitions in favour of the ruling on Section 377, in which they argued that the “real harm” is not caused by their gay children but by “divisive and discriminatory laws” like Section 377.
In the context of family values, the petitions contend that “Section 377 invades the sanctity of the family [and] home and allows unlawful attacks on the honour and reputation of both parents of LGBT persons as well as [of] LGBT persons themselves.”
One mother recalled how isolating it was to be the mother of a “lesbian daughter since the criminality associated with homosexuality prevented any open discussion”.
A change for the better
The most obvious sign of widespread homophobia in any given country is when laws are in place that criminalise homosexuality, as they legitimise discrimination against LGBT persons, and can even influence public morality to that effect.
But the Delhi High Court ruling to reverse the ban could potentially have the same moralistic influence on Indian society – but for the better – by setting a national precedent for progressive change that recognises and protects the human rights of all citizens, regardless of their sexual orientation.
This would create an environment in which LGBT children could grow up without the burden of knowing that once they reach the age of majority they will be criminalised because of their sexuality.