Institute of Development Studies

Legal Victory for Sexual Rights Advocates

3 July 2009 - Kate Hawkins

There is jubilation amongst sexuality rights advocates in India and worldwide with the news that the Delhi High Court ruled that legislation that criminalises consensual gay sex is a violation of fundamental rights protected by India's constitution. The law itself can only be amended by India's Parliament.

Reports from people who attended the hearing are that Chief Justice A. P. Shah, who wrote the historic judgment, invoked the words of Jawaharlal Nehru when he said that the idea of India was to be inclusive of everyone. Just the fact that some people did not like a minority was not sufficient to treat those minorities as criminals. In the spirit of the Indian Constitution he ruled that Section 377 of the Indian Penal Code no longer applied to what consenting adults did in private.

The change came about more than eight years after the New Delhi-based Naz Foundation (India) filed its petition.

'I'm so excited and I haven't been able to process the news yet,' Anjali Gopalan, the executive director of the Naz Foundation (India) Trust told reporters. 'We've finally entered the 21st century.'

Kim Mulji, Executive Director at the Naz Foundation International, said: 'Whilst the full ramifications of the judgement are yet to be fully understood, we hope that the government of India will now enact comprehensive sexual offences legislation that allows both consensual and non-abusive sexual expression, and protects people again sexual abuse. We hope that the example set by India will support the struggle to address these issues in other Commonwealth countries, and elsewhere.'

Sexuality and Development

Academics at the Institute of Development Studies have long argued that in order to design more effective development interventions we need to address the contexts in which people live, including how sexuality is experienced, and how it is constructed by the social, economic and cultural environment.

Many of these issues were explored at a House of Commons event sponsored by the UK All Party Parliamentary Group on Debt, Aid and Trade, the Institute of Development Studies Sexuality and Development Programme and the Realising Rights Research Programme Consortium held on 1 July. Entitled ‘Strange Bedfellows? Sex and International Development’ the purpose of the meeting was to foster original thinking on sexuality and development amongst parliamentarians, civil servants and health and development advocates.

Presentations at the event covered issues such as sex workers rights, UK Government policy on lesbian, gay and bisexual issues, support to marginalised groups to act on HIV and AIDS, sexual minority organising and provided case studies of how repressive practices related to sexuality further entrench poverty in many settings.

The overarching message was that development policy needs to take on these issues explicitly, and apply rights based approaches to this arena. People who are marginalised from dominant norms around sexuality - such as lesbians, gay men, bisexuals, transgender and intersex people, sex workers, single women, women who have sex outside of marriage, and non-macho men - may face not only pressure to conform, but stigma, discrimination and violence if they do not. Those who are integrated into dominant norms of sexuality may also pay a price – for example if they undergo genital mutilation, early marriage, or engage in unequal and unsatisfying heterosexual relationships. These connections remain unrecognised in many policies and programmes. As a result the effectiveness of interventions are hampered, and people continue to be denied their sexual rights, in particular poor people who often have fewer means to claim such rights in the first place.

Speaking in the light of the parliamentary event, and the news from India, Andrea Cornwall of the Institute of Development Studies commented, 'Let’s hope more countries follow suit and get rid of similar laws, which are such a vile vestige of their colonial past. Donors like the UK Government should strengthen their efforts to support the kind of grassroots organising that challenges repressive laws and policy that undermine citizens’ rights and wellbeing.'

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