Sexuality and the law

A movement is taking shape opposing the government stand against the repeal of Section 377 of the IPC, which criminalises private consensual sex between adults.

in New Delhi

At stake is the human right to be different, the right to recognition of different pathways to sexuality, a right to immunity from the oppressive and repressive labelling of despised sexuality.

- Upendra Baxi, in his foreword to the recently released People's Union of Civil Liberties (Karnataka) Report on Human Rights Violations against the Transgender Community, 2003.

ONE of the main demands of the campaign for the rights of sexual minorities in India has been the repeal of Section 377 of the Indian Penal Code (IPC), which criminalises sodomy. In 1994, the AIDS Bhedbhav Virodhi Andolan (ABVA), a human rights activist group, filed a public interest petition in the Delhi High Court challenging the constitutional validity of Section 377. The petition was filed in the wake of the report of a medical team that visited Tihar Jail in Delhi and reported a high incidence of sodomy in the wards. However, the ABVA became defunct soon afterwards and the petition never came up for hearing.

It was only in 2001 that the legal process was revived, when the Naz Foundation, a non-governmental organisation (NGO) working with human immunodeficiency virus/acquired immune deficiency syndrome (HIV/AIDS)-related issues, approached the Delhi High Court with a request to read down Section 377 as not criminalising private consensual sex between adults. Both petitions have now been clubbed together, and the hearing is yet to take place.

The petitioners have argued that Section 377 affects HIV/AIDS prevention efforts and that criminalising predominantly homosexual acts in effect provides moral and legal sanction for continued social discrimination against sexual minorities. They argue that private consensual sexual relations lie at the heart of the privacy zone protected by the right to liberty under Article 21 of the Constitution.

The history of anti-sodomy laws can be traced to the King James version of the Bible in Leviticus, 20:13, which says: "If a man also lies with mankind as he laith with a woman, both of them have committed an abomination they shall surely be put to death; their blood shall be upon them." Along with this, the destruction of Sodom and Gomorrah is seen as the source of legitimacy for laws that criminalised sodomy in England. The English Buggery Act of 1533 penalised acts of sodomy with hanging. Re-enacted in 1563 by Queen Elizabeth I, the Act became a charter for the criminalisation of sodomy in the British Commonwealth later. This meant that criminal sanction was employed to rid society of sexual practices that were viewed as reprehensible by the Church. In 1967, on the recommendation of the Departmental Committee on Homosexual Offences and Prostitution chaired by Sir John Wolfendon, the British Parliament passed the Sexual Offences Act, 1967, which decriminalised homosexuality and acts of sodomy between consenting adults.

In India, historically, same sex relationships were by and large tolerated. Influenced by the Victorian campaigns for sexual purity, the British tried to change Indian marital, sexual and familial arrangements, which they saw as `primitive'. The British introduced anti-sodomy laws in India in 1861. Section 377 criminalises anyone who "voluntarily has carnal intercourse against the order of nature with any man, woman or animal". Says Alok, a gay rights activist: "Though statistics show that this law has been used mostly in cases of non-consensual acts, it has been used by the police to blackmail, extort and harass the homosexual community in India."

Sadhana Vohra, a clinical psychologist based in Delhi, says: "Most people with an active homosexual life have had to deal with harassment from the police." In fact, in 2001, when a petition was filed before the National Human Rights Commission (NHRC) asking it to give directions to the Indian Pyschiatric Association to state clearly that homosexuality was not a disease, the commission did not find it fit to take further action, using the excuse of Section 377. The petition was filed after a boy's complaint that he had been administered aversion therapy and non-prescriptive drugs to `cure' homosexuality. This decision came close on the heels of the Uttar Pradesh government's decision to arrest HIV/AIDS outreach workers and the raids on the offices of the Bharosa Trust and Naz Foundation International in Lucknow in July 2001(Frontline, September 14, 2001).

The Division Bench, comprising Acting Chief Justice Devinder Gupta and Justice B.D. Ahmed, asked the Union government to submit a detailed affidavit. The government, in its affidavit, submitted that while the right to respect private and family life is undisputed, interference by public authority in the interest of "public safety and protection of health and morals is equally permissible". According to the government, deletion of the section can "open the floodgates of delinquent behaviour and be misconstrued as providing unbridled licence for the same".

The government has also argued that Section 377 has been used to deal with cases of child sexual abuse and for complementing rape laws. At a press conference called in response to the government's stand by the NGO Voices Against Section 377, representatives of gay rights, women's groups, child rights, health and human rights organisations said the section criminalised homosexual sex while failing to protect children from abuse. Enakshi Ganguly Thukral of the National Campaign against Child Abuse said the government had justified the retention of the section on the grounds that it was necessary to prosecute child abusers. She said: "This was simply a means to pit child rights against gay rights and to suggest that all paedophiles were homosexual men. This reflected the state's lack of any real concern for the child's search for justice. The government itself had acknowledged the need for a separate law to deal with child sexual abuse in its first periodic report to the United Nations Committee on the Rights of the Child."

Another argument of the government is that "law does not run separately from society" and that when Section 377 was brought under the statute, it "responded to the values and mores of the time in Indian society". Reacting to this, Vijay Nagraj, Director, Amnesty International-India, said that the government's response was a "deliberate and wilful violation" of international human rights law. He said it was trying to preserve a colonial law through the creation of sociological and legal fiction. He added that the law had to be based on human rights principles and "cannot blindly follow public opinion".

Women's rights groups have also come out strongly in favour of repealing Section 377. Reacting to the government's stand, Brinda Karat of the All India Democratic Women's Association (AIDWA), in an open letter to the Union Law Minister, said: "If we were to accept the government's standpoint then many of the legislations concerning women's rights and even Dalit rights would never have been enacted since even today there are many sections of society who consider wife-beating or dowry practices to be consistent with `tradition and culture', just as they consider untouchability to be the `natural order' of society." She added that even if one accepted the flawed argument that cultures and social attitudes have relevance for legal rights, then the government petition clearly has "a very narrow reading of culture and social acceptance, because Indian history is replete with examples of the accepted existence of homosexuality".

Those most affected by the threat of Section 377 are those who are the most vulnerable, like the Hijra sex worker population. Says Elavarthi Manohar, Programme Coordinator of Sangama, a Bangalore-based organisation working with sexual minority groups: "The Hijra sex worker population often faces violence from the police and local goons, Because of Section 377 it is not possible to ask for redress. We are organising a rally soon to the Chief Minister's residence demanding that the law be repealed." Manohar adds: "Even if the court agrees to the current petition, it will not address the harassment that Hijra sex workers who are forced to use public spaces face, as it only asks for decriminalising `private' consensual sex."

Whatever the final decision of the court, it is clear that the legal battle for the repeal of Section 377 is only the first step of a larger struggle for the recognition of the rights of sexual minorities in the country.