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India: Women’s groups and feminists should be particularly encouraged by the Delhi court decision on section 377

by Ratna Kapur, 9 July 2009

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The Times of India, 8 July 2009

A Vision Correction

The Delhi high court judgement on Section 377 is nothing short of historic, bold and revolutionary in ways that extend beyond the rights of gays
and lesbians. Section 377 penalises sodomy, an act for which persons could be punished with death and burnt alive in late 13th century Britain. In the contemporary period the specific provision has been used primarily to target gay men as well as stretched at times to include lesbian women. The court recognised the complaint by the petitioner the Naaz Foundation, an NGO doing HIV work among sexually stigmatised groups that the harassment, abuse and torture experienced by gay men was seriously impeding work on HIV and AIDS.

But the decision was not driven merely by a concern about containing a virus. It was driven by a commitment to the values enshrined in the fundamental rights of the Indian Constitution that no person shall be denied the rights to equality, freedom of expression, and life, on grounds of sex. The high court decision moves boldly in the direction that regards sex as including sexual orientation and sexual preference. In other words, fundamental rights should not be contingent on an individual’s sexual status or sexual conduct. This in turn has important implications for women and other persons who choose to live life in a manner that does not conform with dominant sexual, cultural and familial norms.

For too long, sodomy has defined the homosexual, in the same way as paid sex has defined the sex worker. And it is the sexual act that has been incorporated and invariably criminalised in law. The fact that gay men and women are workers, employers, mothers and fathers, patients and clients, students and teachers, priests, pundits and mullahs, has been marginalised. The striking down of the application of the law opens the way for gays, lesbians, and many other sexual subalterns to challenge discrimination in many areas of their lives on grounds of sexual orientation and sexual identity.

The decision lays to rest the claim by the god squad and sexual morality brigade that these practices are antagonistic to Indian cultural values. Indeed, what is so apparent from the decision is that Section 377 is a culturally specific law that emerged in Victorian England and was transported to the colonies through the mechanism of Empire. It was a provision that was designed to reinforce the view that Indians and colonial subjects were sexually perverse and uncivilised and hence undeserving of freedom. The colonial encounter has left an egregious legacy of stigmatising sex and that legacy persists in the present day. The decision affirms that gays, lesbians, and other sexually stigmatised groups are Indian citizens, and belong to an array of religious denominations and cultural communities. Their sexual identity and cultural identity are integral and provisions that force them to choose between one or the other are nothing short of coercive state action that must be and has been in this instance impugned.

A further area in which the court broke new ground is in recognising the right to privacy as integral to the right to life. While the court was able to build on previous case law in this area, this is the first time that consensual sexual activity between two adults has been considered to be a private matter. This has enormous implications again for those individuals, gay and straight, who are engaged in consensual sexual relationships outside of procreative, marital sex, to ensure that the line is drawn in their favour. The state should not be allowed to interfere in the private intimate space of individuals in order to uphold its more absolute positions on what constitutes ’’good sex’’ and ’’bad sex’’.

Finally, the court’s remarks on equality also marked a significant shift in the recognition of substantive equality, that is, that equality should not be limited to sameness in treatment, but must guarantee equality in result. Once again women will be direct beneficiaries of such a shift. Equality has invariably been interpreted as "treating likes alike". The decision opens up space for people to be treated differently in order to have equality in result, to redress historical wrongs, and counter structural and systemic discrimination on grounds of difference, in this instance, sexual orientation or sexual preference. In other words, disadvantage rather than distinction has quite appropriately been recognised as the core attribute of the right to equality.

Women’s groups and feminists should be particularly encouraged by the decision and indeed learn from it when it comes to formulating future interventions in favour of women’s equality. Historically, women have been treated as weak, passive and vulnerable and hence in need of protection, not equality. This attitude continues to overwhelmingly inform laws that are ostensibly adopted in women’s interests today, such as anti-trafficking laws and policies or sexual harassment laws. While the intentions behind these interventions are good, they do not alter the underlying assumptions about women and invariably end up reinforcing gender stereotypes. This decision provides firm ground for all players in the equality rights arena.

The writer is director, Centre for Feminist Legal Research, New Delhi.