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Written by Kian Ganz Thursday, 02 July 2009 18:54

The Lawyers Collective has emerged victorious in its bid to decriminalise homosexuality by overturning the so-called Section 377 law in the Delhi High Court this morning.

The sexual health group Naz Foundation brought the public interest litigation, in which it was represented by the Lawyers Collective non-governmental organisation (NGO).

Senior advocate Anand Grover led the Naz Foundation legal team as director of the Lawyers Collective's HIV/AIDS unit.

He told Legally India: "It's a historic decision primarily because India was the first country where the British introduced this law [Section 377], which was being used to criminalise adult sexual relations and also interfered with the health services."

Grover was assisted by Lawyers Collective advocates Trideep Pais, Shivangi Rai, Mehak Sothi and Tripti Tandon.

The judgement is not binding outside Delhi and Grover admitted that the possibility of a Supreme Court appeal by the Government still existed. But he added: "We are ready for either outcome but we hope that the basis of judgement is strong. We'll see how the government takes it."

Outgoing Assistant Solicitor General P.P. Malhotra appeared for the respondents, the Union of India, the Ministry of Home Affairs and the Ministry of Health & Family Welfare.

The Ministry of Home Affairs argued that decriminalising "homosexual   conduct  might open floodgates of delinquent behaviour", which was rejected by the Court.

The writ was first brought before the Delhi High Court in 2004 but was then dismissed because the Naz Foundation lacked standing to take the case forward.

The organisation brought the case again on the grounds that Section 377 interfered with its mission to provide HIV/AIDS education and prevention services.

Section 377 was introduced into the 1861 Indian Penal Code by the British, which criminalised "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment.

The arguments in the present case revolved around the definition of "carnal intercourse against the order of nature", challenges under Indian constitutional human rights and that Section 377 was abused by the police to harass the gay community.

The Court ruled in favour of the Naz Foundation today by finding that Section 377 contravened articles 21, 14 and 15 of India's constitution, which respectively protect the right to life and personal liberty, equality before law and prohibit discrimination.

The Delhi High Court decided that Section 377 does not apply to any consensual sex between adults.

Click here to download the full judgement.

The Lawyers Collective is an Indian national NGO that employs lawyers who deal with women's rights, HIV/AIDS and civil rights.

Read our interview with The Lawyers Collective Anand Grover about the long road to getting section 377 overturned.

Comments (3)

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#1...
written by Aye, 03 July 2009 09:07

Kudos. Well done.

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#2...
written by Anon, 07 July 2009 23:45

Congratulations to all at Naz and LC. Thanks to Legally India for featuring this. Makes an interested read from the regular features about commercial law firms.

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#3good lord
written by Anonymous, 11 February 2010 10:51

the fools!!! a judgement of the delhi court is applicable within the territorial limits of the state of delhi. in a federal country like india ....that judgement is not applicable to any other state. so this unfortunate jumping around is misplaced. 377 thankfully holds sway over the rest of the country. its interesting to ponder how has this judgement has gone past sakshi (2004) while adhering to the precedential value of the same.......

devlin rocks ...hopefully i will not have to worry when my son is going out to play football with a guy!!!!..... wont have to think what they may be doing behind the bushes ..... hopefully our laws will remain sturdy and will not be influenced by random liberals.

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