STATEMENT FROM THE UNITED NATIONS DEVELOPMENT PROGRAMME (UNDP) ON THE DELHI HIGH COURT’S DECISION ON SECTION 377 OF THE INDIAN PENAL CODE
July 2, 2009
Today, India has taken one more step toward strengthening its HIV response, and one step closer to achieving all human rights for all with the Delhi High Court’s decision to read down Section 377 of the Indian Penal Code–a provision which criminalizes consensual adult, private sexual conduct by persons of the same sex. The realization of human rights for all is not only fundamental to our common humanity, it also is imperative for an effective AIDS response and generating broader health and development benefits.
At the end of 2008, 86 UN Member States still criminalized same sex acts among adults. Yet, evidence from the last twenty five years shows that where men who have sex with men and transgender people are marginalized or criminalized, many fear to take up the HIV, health and other services that are available. This is a result of the likelihood that they will face discrimination, and in some places, violence or criminal prosecution. Laws which criminalize consensual adult, private sexual conduct by persons of the same sex continue to be a significant barrier to achieving universal access to HIV prevention, treatment, care and support and the Millennium Development Goals.
In India, HIV prevalence among men who have sex with men and transgender people continues to be much higher than in the general population. India’s National AIDS Control Organization recognizes the need to scale up HIV prevention, treatment, care and support for men who have sex with men and transgender people. Yet India, like a number of other Commonwealth countries, still criminalizes consensual adult, private sexual conduct by persons of the same sex. Today, a division bench of Chief Justice A.P Shah and Justice Murlidharan of the Delhi High Court delivered its judgment on the constitutional challenge to the validity of s377 – a provision of the Indian Penal Code which criminalizes homosexuality. Justices Shah and Murlidharan concluded that s377 violates the human rights provisions enshrined in the Indian Constitution and is therefore unconstitutional.
According to Jeffrey O’Malley, Director of UNDP’s HIV Practice, “Inappropriate criminalization is a major impediment to achieving universal access. This landmark judgment emphasizes the importance of improving the human rights situation for men who have sex with men and transgender people across the globe. We hope that other countries will follow suit.”
UNDP works to prevent the spread of HIV/AIDS and reduce its impact. As a trusted development partner, and co-sponsor of UNAIDS, it helps countries put HIV/AIDS at the centre of national development and poverty reduction strategies; build national capacity to mobilize all levels of government and civil society for a coordinated and effective response to the epidemic; and protect the rights of people living with AIDS, women, and vulnerable populations.
Within the Joint United Nations Programme on HIV/AIDS (UNAIDS), UNDP is lead Cosponsor focusing on expanding and strengthening policies and programmes for men who have sex with men, transgender people and HIV.
Dr Mandeep Dhaliwal
Cluster Leader: Gender, Human Rights & Sexual Diversities
United Nations Development Programme
HIV/AIDS Practice
Bureau for Development Policy
304 East 45th Street, FF-1180
New York, NY 10017
Tel: (212) 906 6590
Fax: (212) 906 5023
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