To the Government of India, Members of the Judiciary, and All Citizens

We write to you today as organizations and individuals that have been working on issues of
women’s rights, child rights, labour rights, human rights, education, and health across India.
We write to welcome the Delhi High Court judgment reading down Section 377 of the Indian
Penal Code to decriminalize consensual sex among adults in private. Through our work, we
have seen the impact of Section 377 on every facet of people’s everyday lives. In our view,
Section 377 impacts not only the rights of LGBT persons but also human rights more
broadly, and women’s rights, child rights and the right to non-discrimination and equality that
are critical to all movements. We see this judgment as one that will enable many people –
irrespective of how they identify in terms of gender or sexuality – in this country to live their
lives with dignity and freedom, and allow us to combat all forms of discrimination, whether
on caste, religion, gender, or class.

The judges’ decision upholds the constitutional values that we espouse as concerned Indian
citizens. It reflects the depth of Indian values at the heart of the constitution; namely that of
tolerance, dignity, respect and inclusiveness. As stated in the judgment, “if there is one
constitutional tenet that can be said to be underlying the theme of the Indian Constitution, it is
that of ‘inclusiveness’… Those perceived by the majority as “deviants' or 'different' are not
on that score excluded… Where society can display inclusiveness and understanding, such
persons can be assured of a life of dignity and nondiscrimination.”

It is therefore rather disturbing to us that there seems to be reactions amidst some parts of the
country against people living lives free from discrimination. These have taken the form of
defendants of narrowly defined ideas of “Indian Culture.” Sexual preference and
identification is only one part of people’s identities. We believe that a modern democracy
must respect diversity regardless of whether consensus exists in society on the desirability of
each such practice, provided such practices respect the personhood of others. If some
“religious leaders” believe that homosexuality is not sanctioned by the scriptures, they have
the right to propagate their views provided that these views are not taken as having the final
sanction on the issue for society as a whole. At the same time, religious identity is as
important for many homosexuals as for heterosexuals. Homosexual people who are Hindus,
Muslims, Sikhs and Christians have fully participated in this challenge and supported the
decision.

Recommendations to the Government

While this debate continues, however, it is imperative that the Government of India respect
Dr Ambedkar’s ideal of a secular, constitutional morality that follows first and foremost the
spirit of the Constitution that is enshrined in this judgment. This is a matter about our
fundamental rights, not a debate on moral opinions about sexuality.

It is for these reasons that we urge the government respond to the Supreme Court and
support the judgment of the Delhi High Court in this matter.
 377 and Rights: Multiple Perspectives

Section 377 of the IPC relating to ‘unnatural sex’ has been used by police, families and other
actors to harass, threaten and abuse same-sex loving people including those who identify
as Lesbian, Gay, Bisexual, Transgender, Hijra and Kothi persons (henceforth referred to as
LGBT persons). There are documented cases of police brutalities particularly against hijras
and kothis using the threat of S.377 (Voices against 377, 2004), and of parents bringing
charges under S.377 against their son or daughter’s same-sex partner. The existence of the
law criminalizes an entire population of Indian citizens and legitimizes discrimination
against them.

S.377 has also been an obstacle to the provision of essential life-saving sexual health and
HIV prevention programs implemented by non-government organisations (NGOs). The
case of workers of Bharosa Trust and Naz Foundation International in Lucknow being
arrested and detained under S.377 in 2001 has been well documented (Voices against 377,
2004). In addition, documented cases of “conversion therapy” and continued treatment of
homosexuality as a “disease” especially by mental health professionals despite official and
global World Health Organisation declarations is legitimized due to S.377.

It has been contended that S.377 constitutes a fundamental obstacle to the right to equality,
right to life, and the right to live with dignity of LGBT people in India. It has also been
contended that S.377 violates the rights guaranteed to all citizens of India by Articles 14,
15 and 21 of the Constitution of India, namely the rights to equality, non-discrimination, life,
liberty, privacy and dignity.

S.377 has been used sparingly to prosecute adult consensual sexual relations. It is more
frequently used to prosecute sexual assault against minors and male adults, and for this
reason has been retained in the IPC thus far. However, it is contended by organisations
focusing on child rights and child sexual abuse that S.377 is grossly inadequate to govern
all forms of child sexual abuse. It is also contended by women’s rights organisations and
organisations working on sexuality/ sexual health/rights that S.377 is inadequate to govern
all forms of penetrative sexual assault on adults.