377 Quit India!

Even as countries around the world progressively give gays more rights, an antiquated law in India is being used to harass and intimidate the homosexual community


ON JUNE 29, 2008, Delhi witnessed a kaleidoscopic display of posters, rainbow flags, drums, colourful headwear, masks, songs and dances, and celebratory slogans by over 500 activists who took to the streets in the city's first ever lesbian-gay rights march. The right to sexuality marchers also shouted: "377 Quit India", referring to Section 377 of the Indian Penal Code (IPC). This section declares, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

Delhi, in addition to Kolkata and Bangalore, paralleled in India similar marches held in cities across the world to mark the anniversary of the 1969 Stonewall riots in New York. In New York, almost 40 years ago, gays had protested against harassment by law enforcement authorities. Those riots marked the beginning of the gay rights movement in the US and have been celebrated with a Gay Pride Parade ever since. In India, today, gay rights activists are citing harassment as one of the foremost problems faced by LGBT (lesbian, gay, bisexual and transgender), hijra and kothi people.

The ‘Unnatural Offences' or Section 377 law does not make any distinction between consensual and coercive sex, heterosexual or homosexual affiliations, or bestiality. It does not discriminate on the basis of identities, but certain acts, including oral sex and anal sex, whether between opposite sex or same sex partners. This anti-sodomy law of the British Raj, introduced in India in 1860, stands today, almost 150 years later, unchanged as Section 377 of the IPC.

How exactly is this law relevant to the gay and lesbian community? What has prompted organisations such as AIDS Bhedbhav Virodhi Andolan (ABVA) and the Naz Foundation to challenge the constitutionality of this law in the country's courts? And what led author Vikram Seth, legal luminary Soli Sorabjee, and a host of other prominent citizens, to draft an open letter to the government of India supporting the "overturning of Section 377... this archaic and brutal law (that) has served no good purpose"?

Sumit Baudh, a senior programme associate at TARSHI (Talking About Sexual and Reproductive Health Issues), says: "Section 377 is a breach of the rights to privacy, human dignity and the right to life." Though Section 377 has been used only sparingly to make arrests and conviction under the law is rare, it is often used by police and social bigots to intimidate, threaten and harass the gay community." Ashu Seghal recounts how two neighbourhood policemen, aware of his gay identity, beat him with a bamboo stick and forced him to perform oral sex on them. After the incident, they advised him to "forget it as a bad dream" and not think of seeking justice as they could arrest him under Section 377.

Sexual 377 often prevents sexual minorities from accessing justice. A homosexual patient, who was traumatised by his treatment at the psychiatry department at Delhi's All India Institute of Medical Sciences (AIIMS), approached the Naz Foundation which, on the patient's behalf, filed a complaint with the National Human Rights Commission (NHRC). The NHRC refused to address the complaint, citing Section 377 as the reason.

Organisations working on HIV/AIDS have also condemned this law for interfering with their efforts to provide health services and HIV/AIDS related information to sexual minority groups, including high-risk groups such as men who have sex with men (MSMs). Apprehensions about being arrested under this law discourage MSMs from seeking help and the law itself proves to be a barrier to the efforts of the organisations to reach out to them.

In 1994, following a report of rampant homosexuality in Tihar jail, ABVA recommended to the prison authorities that condoms be made available to prevent the transmission of HIV. The plea was denied on grounds that distribution of condoms would connote that the government is promoting homosexuality by violating Section 377. Officials further denied reports of homosexuality being prevalent within the jail.

Rahul Singh, a gay rights activist with the Naz Foundation, says, "When working in the field with sexual minority groups with intervention efforts related to safer sex practices, organisations are often harassed by local police and goondas who claim we are promoting the culture of homosexuality." Activists with Bharosa Trust and the Naz Foundation, organisations working with HIV/AIDS related issues, were arrested in Lucknow on charges that included violation of Section 377. Following a police raid on their offices, the then Superintendent of Police, BB Bakshi, stated that it was his desire to "eradicate homosexuality which is against Indian culture".

Commenting on the allegation that Section 377 is used by the police force to harass members of the gay community and organisations working with them, senior police official Kiran Bedi says that the police only acts when there is a complaint and as such is bound to respond. Its failure to do so would invite further allegations and, in this respect, it is only "doing its duty". However, she adds, "The police need to use Section 377 more sensitively."

"Section 377 has to go," says gay rights activist Leslie A Esteves, one of the organisers of the recently held gay parade. "It criminalises a consenting act between two adults, discriminating against citizens on the basis of those who can have consensual sex and those who cannot, and this is unacceptable in a democracy."

The constitutional validity of Section 377 was challenged in the Delhi High Court first by ABVA in 1994 and then by the Naz Foundation in 2001. The latter's petition claimed that the Section violates the rights to equality, health, life, and other fundamental freedoms of sexual minorities. In 2002, Joint Action Council, Kannur, filed a counter affidavit opposing the petition, followed by the government of India in 2003. In 2004, the Delhi High Court dismissed the petition on grounds that there was an FIR filed against the petitioner under Section 377.

Following this ruling, the Lawyers' Collective and legal representatives of the Naz Foundation appealed to the Supreme Court on grounds that a public interest petition can be filed bona fide by citizens, and the case was remanded to the Delhi High Court. The need for Section 377 to protect young boys from paedophiles is a reading often cited by defenders of the law - but the law also implies that consensual oral or anal sex between adults is equivalent to rape. In light of the concerns regarding the protection of minors, the Naz Foundation does not advocate the complete repeal of the law. It wants it read down to exempt consenting adults from being subsumed. The case is currently pending with the Delhi High Court.

The government's stand conforms to the Union home ministry's counter to the petition which is based on concerns about "public morality", as opposed to, under the Ministry of Health, the National AIDS Control Organisation's (NACO) support of it. In response to the Union being divided in its opinion, Justice Sikri, part of the bench hearing the case, remarked, "It (homosexuality) is not a health hazard but is affecting the home."

The government's response stated, "Deletion of this Section would open the flood gates of delinquent behaviour and be misconstrued as providing unbridled licence to the same." Its public morality case is based on the argument that Indian society, by and large, allegedly disapproves of homosexuality. Rahul Singh questions this argument: "What exactly is public morality? Who can define it?" Adds Sumit Baudh, "Morality is not the business of law when certain human rights are being violated. In addition, there are enough instances to convincingly argue that public attitude toward homosexuality is reasonably tolerant."

Aditya Bondopadhyay of the Naz Foundation, in a speech in Geneva, stated, "Repeated instances of the culture argument have risks of putting in jeopardy the gains of the women's rights movement, or the movement for the upliftment of Dalits and other oppressed castes, the civil rights movement, the social gains that have been made over the years of struggle... All of these movements have been conducted in opposition to some or the other prevailing majoritarian belief system."

SO, IS THE government's conviction that same-sex acts are "unnatural" and hence punishable by law, justified? And is homosexuality a western construct? Is it an "invasion of India by decadent Western cultures" as the vice president of the National Federation of Indian Women declared in 1994?

It was the British, in 1860, who introduced on the subcontinent laws persecuting homosexuals. Acceptance of homosexuals has existed in Indian history and culture for a long time --in ancient India when homosexuality was recognised as the third gender (tritya prakriti) and the medieval era when castrated eunuchs were considered the most reputable, trustworthy servants. A survey of rural India by the United Nations Population Fund (UNFPA) found that "male to male sex is not uncommon", with a higher percentage of men reporting male to male sex than sex with sex workers. As far as these acts being ‘unnatural' goes, gay theory exponents contend that sexuality is a ‘social' construct rather than a ‘natural' one.

The 1860 anti-sodomy law imposed by the British was actually an improvement on their earlier law under which homosexuality was punished by hanging. However, it was still a step backwards for India which had never before criminalised homosexuality. But, as the late Edward Said explains in his landmark study, Orientalism, the British having created the Orient as the colonial state, projected India as an uncivilised, barbaric land which could be freed from this despotism only by British intervention through the gift of law, private property and education. This led to the compilation of the Indian Penal Code and the Criminal Procedure Code, and thrust upon India a colonial concept of law which often bore little relation to its complex and indigenous social reality.

The United Kingdom, along with certain other countries, has since repealed its anti-sodomy laws -even as they remain unchanged in contemporary India. Today, it is our laws that assert that the existence of homosexuality is an aberration, a vice. The question is, is homosexuality itself a western induced aberration as many claim, or is our understanding of an aberration a western construct?