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Section 377 and Denial of Rights to Sexual Minorities

by Economic and Political Weekly, 30 October 2008

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Economic and Political Weekly,
25 October 2008

Denial of Rights to Sexual Minorities
- Section 377 of the Indian Penal Code must be repealed because it denies constitutional rights to sexual minorities.

One of the crimes of the State in independent India is that it has continued to retain on its statutes many laws that were enacted by the colonial government. High on the list of laws that reflect the need to control is Section 377 of the Indian Penal Code (IPC).

Section 377 holds that carnal intercourse "against the order of nature" will be punished with imprisonment for life, or with im- prisonment for a term extending to 10 years and may be accom- panied by a fine. This provision of the IPC is rarely enforced against non-heterosexuals, but its criminality lies in its widespread use by lower-level police officials to blackmail, extort payments and in general for harassment. The fear of prosecution is enough to ensure that sexual minorities cannot lead their lives openly. At present, the Delhi High Court is hearing a bunch of petitions asking for the reading down of Section 377. In 2003 the union government told the court that "Indian society by and large dis- approves of homosexuality" and the disapproval was strong enough to justify it being treated as a criminal offence "even where the adults indulge in it in private". The following year, the court threw out a petition by the Naz Foundation (an NGO working on health) on the ground that it had no locus standi on the issue. However, Naz went on an appeal to the Supreme Court which directed the Delhi High Court to hear the case.

The home ministry, which said in 2003 that repealing the concerned section would open the floodgates of "delinquent behaviour", continues to maintain that homosexuality is a "disease" that is responsible for the spread of AIDS in the country and is "immoral and a reflection of a perverse mind". It has also argued that the courts should not intervene in the matter for Section 377 reflects the "will of the people" - an outrageous stance considering that this provision of the law was a colonial creation and not enacted by the people’s representatives in independent India. The health ministry has a different view on Section 377. Union health minister A Ramadoss recently said that there are 23 lakh Indians, who as he described them are "men who have sex with men", out of whom 10 per cent are highly vulnerable to HIV/AIDS and that Section 377 makes it difficult to access this "crucial segment". Important as the petition questioning Section 377 is, it should be stressed that there is a much larger and fundamental issue involved than a "reading down" of this anachronistic section of the IPC. Section 377 is morally repugnant as it denies a substantial number of Indians their constitutionally-guaranteed right to equality - entirely on the subjective ground that homosexuality is "immoral" and "a disease". The long and short of the issue is that Section 377 denies sexual minorities the freedom of expression, as enshrined in the Constitution, since all sex between consenting adults falls in this category.

The Naz petition seeks a reading down of Section 377 on the ground that it prevents health workers from openly working with gays on prevention of HIV/AIDS. The foundation of the Naz rea- soning for a reading down of the Section 377 is thus actually the very reason the government is giving for "not repealing" this provision of the IPC, i e, that it will open the floodgates of delin- quent behaviour ("spread HIV/AIDS"). Hence, while all credit is due to the Naz Foundation for persisting with the petition, the fundamental demand should be for a complete repeal of this colonial construction of normality.

(The petitioners do not want a repeal of the section arguing that it is needed to prevent sexual abuse of children and women. This is an important issue and it is one that can be addressed only by replacing Section 377 with a new one that deals solely with child sexual abuse and rape.)

In its initial phase HIV/AIDS was indeed disproportionately present among the gay population. But it is now widely accepted that the cause of HIV infection is unsafe sex (as well as the use of infected intravenous needles and transfusion of infected blood) and not any particular sex act. It is relevant that while HIV/AIDS was very high among gays in the United States in the 1980s, it has, thanks to the practice of safe sex, fallen dramatically since. It is a matter of shame that India is one of a handful of coun- tries (mainly former colonial nations) which retain such criminal provisions in their laws. Note that while in 2008 the government of India calls homosexuality a disease, as far back as in the 1960s the American Psychiatric Association removed homosexuality from its list of "illnesses".
The legal and public debate on Section 377 must be seen as an important, but only one, element in the broader movement by the lesbian, gay, bisexual, transgender communities of India - those who are collectively described as sexual minorities. Their demands are many: in the first place for legal recognition and constitutional rights, for healthcare services, and for public acceptance. The current debate is also the result of years of tireless campaigning by gay and lesbian activists around the country who have had to struggle under the cloud of "criminality" to demand what should be their fundamental rights.

Apart from Section 377, the sexual minorities are subjected to a
variety of legally sanctioned and covert forms of discrimination. To
give one example: Since the family law structure is based entirely on
a "heterosexual basis" and marriages can only be between persons
of opposite sex, succession and property rights, and entitlements to assets are not legally sanctioned in relations between homosexuals. By refusing to legalise sexual relations between same-sex consenting adults on the dubious ground of the demands of "public morality" (as claimed by the home ministry in court) the government is denying a large number of its citizens the right to conduct their lives with dignity. The repeal of Section 377 will be the first step in cutting the ground under the homophobia that afflicts state and society in India.