SC has failed to recognise protected right to privacy, non-discrimination: Human Rights Watch on Section 377

The Supreme Court, by reversing the 2009 Delhi High Court ruling that decriminalized same-sex conduct between consenting adults, has failed to recognise everyone’s internationally protected right to privacy and non-discrimination, Human Rights Watch has said in a statement.

The Supreme Court said that the Delhi High Court order is constitutionally unsustainable, leaving it to parliament to repeal Section 377 of the Indian Penal Code.

In July 2009, the Delhi High Court ruled that the “unnatural offenses” act could no longer be used against consenting adults. The decision was the result of nearly a decade-long legal battle led by the Naz Foundation (India) Trust, a non-governmental organization addressing HIV among men who have sex with men (MSM). The judgment was appealed by an assortment of conservative religious groups and individuals bringing the case to the Supreme Court.

"Sexual rights and LGBT groups including Human Rights Watch have consistently called on the government of India to repeal section 377, but the government did not take a stand, choosing instead to wait for the result of the Supreme Court appeal," said Meenakshi Ganguly, South Asia Director of HRW.

"The Supreme Court’s ruling is a disappointing setback to human dignity, and the basic rights to privacy and non-discrimination. But now the government should do what it should have done in the first place and seek to repeal Section 377," she added.

"The Indian government did not appeal the Delhi High Court ruling, presumably because it agreed with the decision. Now it should join countries like Australia and New Zealand that have already abolished this colonial law that they too inherited and take the lead on ending such discrimination," Ganguly said.