amfAR, The Foundation for AIDS Research

A Victory for Human Rights: Indian Court Strikes Down Law Criminalizing Homosexuality


July 8, 2009—HIV/AIDS and gay rights advocates in India scored a major victory on July 2, when the Delhi High Court overturned a controversial statute outlawing homosexuality. The removal of the ban, which had been enacted by the British nearly 150 years ago, is an important step toward greater equality for the lesbian, gay, bisexual, and transgender (LGBT) community in India, and it is also expected to have a profound impact on HIV/AIDS prevention and outreach for men who have sex with men (MSM).

"A new era has dawned in India. We will be able to deliver HIV services without fear." 

“A new era has dawned in India,” said Anand Grover, a leading civil rights attorney who headed the case. “With this judgment, the country has shed one of the last yokes of colonialism. The Court’s decision has broken the shackles of criminalization that were hindering LGBT groups, and will ensure that we are able to deliver HIV services without fear.”

In its decision, the High Court declared that the law violated the Indian Constitution and exposed the LGBT community to “harassment, exploitation, humiliation, cruel and degrading treatment” by law enforcement. The Court also cited arguments by AIDS advocates that fear of prosecution has prevented MSM from accessing lifesaving HIV/AIDS services. According to India’s 2008 UNGASS Country Progress Report, adult HIV prevalence was 0.36 percent, while prevalence among the country’s reported two million MSM was 6.4 percent. However, the true scope of the epidemic among Indian MSM remains unclear, given the reluctance of many MSM to acknowledge their same-sex relationships.

“We know that criminalization has contributed to the shockingly high levels of HIV among MSM worldwide,” said amfAR CEO Kevin Robert Frost. “This decision by the High Court sends a powerful message that all people deserve equal treatment under the law—including safe access to HIV prevention, treatment, and care.” Homosexuality remains illegal in 85 nations around the world.

Grover, head of the HIV/AIDS Unit of the Lawyers Collective and the UN Human Rights Council’s Special Rapporteur on Health, spoke with amfAR’s TREAT Asia Report last year about the central role of human rights in the fight against HIV/AIDS. Although the Delhi High Court’s ruling is being appealed to the Supreme Court, he feels confident that he and his allies will prevail. This landmark decision, he said, “has lessons for other groups beyond the LGBT community. India will be strengthened by this judgment.”