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Why Delhi child rights commission opposed de-criminalisation of gay sex

In 2009, when the Delhi High Court legalised consensual sex between same sex adults and the decision was widely welcomed and celebrated as a landmark moment in India, it wasn’t just religious groups and self-proclaimed defenders of Indian culture that panicked.

Among the parties that approached the Supreme Court to have the order reversed, and the only government body to do so, was the Delhi Commission for Protection of Child Rights (DCPCR).

In doing so, the child rights commission found itself on the same side as conservative religious groups and a yoga guru who believed homosexuality was a ‘disease’ that can be ‘cured’.

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“We took extra-ordinary interest in this case. Ours was the only petition which was connected to a government body. Neither the Home Ministry nor the Health Ministry took a clear stand,” says Amod Kanth, the then chairperson of the DCPCR.

Only two years before the High Court order was passed, says Kanth, a national study on child sex abuse conducted by the ministry of women and child development had shown that 50 per cent of the child victims were male. And that Section 377 was the only protection that male children had against sexual assault.

“In the last 150 years, there have been only 200 cases were this section has been effectively applied. All those cases applied to sodomy and in more than 90 per cent of the cases, the victims were minors. So the application of the Section 377 was to protect victims,” says Kanth.

But then with the passage of the landmark Protection of Children from Sexual Offences (POCSO) Act this year, the first such law in India to comprehensively address child sexual abuse, is Section 377 relevant as far as protecting children from abuse is concerned?

The legal team that argued the case for DCPCR in the Supreme Court concedes that the situation has changed with passage of the POCSO Act, but they argue that the High Court in legalising consensual sex between consenting adults failed to address the ‘fall-out’ of the impact of such relationships on children.

Says Amit Anand Tiwari, advocate for DCPCR, “We studied various materials from medical journals and found studies that show that children of LGBT parents were more prone to social stigmatisation. In decriminalising homosexuality, the High Court did not devise any protection as far adoption laws were concerned – whether gay and lesbian couples can adopt children, whether they have right to adopt. These issues were not addressed by the High Court order.”

Tiwari argues that while the POCSO Act addressed the issue of sexual assault against children, it did not “address concerns raised by DCPCR relating to adoption, parenting, and stigma to LGBT kids. Those problems are in the realm of reality and were not addressed by the High Court order.”

Adds Kanth,“Under the United Nation Convention on Rights of Children and under Indian laws, every child has a right to a family. And family is clearly defined as mother and father. Therefore, the High Court order was a direct denial of the child’s right to a family and right to parenthood.”

Interestingly, though these were DCPCR’s reasons for intervening in the case, the issue of protection of child rights finds no mention in the Commission’s final submissions made to the Supreme Court. “While protection of child rights was the starting point and the reason why the Commission challenged the order, a lot of legal issues cropped up and we examined the High Court judgment on Constitutional principles,” said Tiwari.

Explaining DCPCR’s main argument against the Delhi High court order decriminalising gay sex, the Supreme Court advocate said, “Consent alone cannot be a reason for saying that an act is not criminal. Mere fact that someone with consent is doing something in the privacy of their home cannot be the sole and determining criteria for an act to be criminal or not. Euthansia, for example, may be a consensual act between a doctor and a patient, but that does not make it legal.”

Welcoming the SC verdict on Section 377, Tiwari said, “It strikes down this false notion of having absolute right of privacy over your choices and your body. And as far as child rights are concerned, the High Court order failed to address issues arising from de-criminalisation of consensual sex between same sex adults. And to that extent, I believe this verdict is in favour of protecting the rights of children.”

The present chairperson of DCPCR Arun Mathur could not be reached for comment.