July 7, 2009
Geneva, Switzerland -- The International AIDS Society (IAS) today welcomed Thursday's decision by Delhi's High Court to decriminalize homosexuality as a victory for human rights and HIV prevention, treatment, care and support. The IAS urged India's Government to take affirmative steps to promote and protect the rights of all criminalized communities at risk for HIV in India, including men who have sex with men (MSM), people who use drugs, and sex workers.
Although the High Court judgment is currently limited to Delhi, the IAS urges the Indian Government to decriminalize homosexuality nationally. The two-judge bench ruled that Section 377 of the Indian Penal Code (IPC), which criminalizes "carnal intercourse against the order of nature," violates India's Constitution, which guarantees equal opportunities for all and prevents against discrimination. In the ruling, Chief Justice A. P. Shah and Justice S. Muralidhar highlighted evidence from India's National AIDS Control Organisation (NACO) that the law: "serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same-sex relations and sexuality minorities; which consequently drive the activities of gay men and MSM, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts. Section 377 IPC thus creates a class of vulnerable people that is continually victimised and directly affected by the provision."
At the XVII International AIDS Conference held in Mexico last July, the IAS highlighted that criminalization, prejudice, social hostility and other abuses towards MSM fuel the HIV epidemic. More than 80 countries have legislation prohibiting same-sex behaviour, many of which are former British colonies, including India's neighbours, Pakistan, Bangladesh and Sri Lanka. IAS President Julio Montaner points out that countries with laws that protect rather than punish communities most vulnerable to HIV have better access to HIV prevention, treatment, care and support services.
"It has been demonstrated in many different countries that reducing the social exclusion of men who have sex with men -- as well as sex workers and people who use drugs -- through the promotion and protection of their human rights, is not only consistent with, but a prerequisite to, good public health. Once discriminatory policies are abolished and stigma and discrimination are confronted, programmes can be put in place to help and encourage those at high risk to stay free of HIV infection, supporting national goals of reducing HIV burden," says Dr Montaner.
According to NACO, just 6% of the estimated 2.35 million gay, bisexual, transgender (kothi) or inter-sex people (hirjas) in India currently have access to HIV prevention. UNAIDS estimates that approximately 2.5 million people in India are living with HIV, the vast majority of whom are undiagnosed.
"Increasing access for those at risk to HIV prevention services, including HIV testing, must be a priority for the Indian Government," states Dr Montaner. "The IAS believes that all countries around the world must promote and protect the rights of all communities. Evidence shows us that criminalizing and discriminating against any group of individuals only serves to fuel the HIV/AIDS epidemic by denying services and relevant prevention messages."