By Radhika Ramassuban*
India continues to have on its statute books a 150-year-old anti-sodomy law enacted in the mid-nineteenth century by the British colonizers in keeping with a similar law in England at the time. More than half a century ago, the British law was repealed. But in India, Section 377 of the Indian Penal Code that criminalizes “unnatural offences” continues to be used by the police and sections of the general public to criminalize, oppress and stigmatize primarily gay men.
In 2001, the Naz Foundation Trust (an NGO in India addressing the sexual health needs of ‘men who have sex with men’ in the context of HIV) filed a petition before the Delhi High Court challenging the Constitutional validity of Section 377. The Petition asks for a reading down of the Section to exempt private adult consensual sex from its purview. The final hearing of this case came before the Bench on 19 May 19 2008 and is currently underway. The principal paradox before the Bench is that two affidavits have been placed before it by two different Ministries of the Union Government, each of which takes a different stand. One is the National AIDS Control Organization, under the Union Ministry of Health, which has come out openly in support of the petition. The other is the Ministry of Home Affairs that contests the petition on grounds that it would offend public sentiments. As previously stated, the dispute itself has been raised by a third party (Naz) that is not itself an aggrieved party.
The significance of the hearing at this point in time is that it is being keenly watched and monitored by a movement led by people of alternative sexualities. This coalition of alternative sexualities groups began to take shape around 2000 and has evolved into a ‘voice’ being heard through the print and electronic media, street demonstrations and (primarily) English language literature. The force of public opinion built up by this movement over the last few months in the metropolitan cities has brought visibility and legitimacy to the case being made against this law¹.
To date, there have been two days of hearings. On day one, the Counsel for the Petitioner – Anand Grover of Lawyers Collective – made the following main arguments against Section 377: (1) It violates articles 14 (equality), 15 (non-discrimination), 19 (freedom of speech), and 21 (life and liberty); (2) Since it is pre-Constitutional (i.e., predating independent India’s written Constitution), this Section has not, to date, been subjected to strict scrutiny. One of the consequences of the vague and uncertain readings of this Section by the Courts from time to time has been to include a variety of sexual acts under the rubric of “unnatural sex” (such as oral sex or anal sex between man and man, woman and man, etc.); and (3) The time has come to test Section 377 against the parameters of Fundamental Rights as defined by the Indian Constitution.
On the second day, the Counsel cited extensively from the Wolfenden Report of the U.K. The report addresses all of the primary arguments against the decriminalization of homosexuality. The significance of this report is that many of these arguments are relevant to the Indian context today. For instance, on the question that decriminalization could encourage homosexual conduct, there is no evidence that this is actually the case. Further, in relation to the argument that decriminalization will have a negative influence on marriage and family, the evidence shows that adultery could play as important of a role in the break-up of a marriage. In fact, the social compulsion to marry in India, irrespective of sexual orientation, actually results in several unhappy marriages and women’s vulnerability to HIV. With regards to the argument that decriminalization will pave the way for pedophilic acts, the Counsel reminded the Court that the petition asks for a reading down of Section 377 (and not its repeal) precisely because this law is currently the only recourse for sexually abused boys. Finally, on the question that abolition of the law could harm public sentiments, the Counsel argued that in a free society the role of criminal law cannot be one of penalizing individuals in order to satisfy notions of morality².
¹ For an extended discussion of the history of resistance to the anti-sodomy law, the reader is referred to Radhika Ramasubban’s article “Culture, politics and discourses on sexuality: A history of resistance to the anti-sodomy law in India” in SexPolitics: Reports from the Front Lines (www.sxpolitics.org/frontlines) edited by Richard Parker, Rosalind Petchesky and Robert Sember.
² This update is based on reports in www.lawyerscollective.org
*Radhika Ramassuban is member of the SPW Adivisory Group
:: Posted in 09/23/2008 ::