|Gay in India: Marching in Bombay Is India finally about to decriminalise male homosexuality?
Under its colonial era Section 377 of the Penal Code, sexual acts 'against the order of nature' are still theoretically illegal in India. However, New Delhi government doesn't usually prosecute adults engaging in private consensual homosexual acts. Unfortunately, this de facto descriminalisation doesn't mean that homophobic harassment and blackmail of gay men and women are therefore rare.
Some estimate that over fifty lesbian couples have committed suicide over the last five years. These young women have done so because of disapproval from their parents and / or society.
To counter the above, the campaign to decriminalize homosexuality has strengthened. As in New Zealand in the mid-eighties when our turn came, LGBT rights campaigners have concentrated their efforts on education and lobbying related human rights and health issues, especially information and public policy needed to combatthe spread of HIV/AIDS in the subcontinent. These include organisations like the Naz Foundation (India), National AIDS Control Organisation, Law Commission of India, National Human Rights Commission and The Planning Commission of India.
India must embrace decriminalisation of male homosexuality, as well as an end to discrimination against Indian LGBTs, according to these NGO and governmental organisations, especially the Naz Foundation. As with New Zealand's AIDS Foundation, the Naz Foundation is a particularly supportive group.
The Naz Foundation is a New Delhi NGO, which operates as a registered charitable trust and has worked on HIV/AIDS and sexual health related issues since 1994. Anjali Gopalan founded this organisation to fight HIV/AIDS and support efforts for decriminalisation of male homosexuality in India. Anjali began his HIV/AIDS activism in the United States. After she returned to India during the early nineties, she was frustrated at the neglect that surrounded HIV/AIDS in the subcontinent. She founded Naz India to support marginalised Indian sexual and gender minorities as well.
Naz India focuses on prevention and treatment. It emphasises the prevalence of HIV, as well as human rights and civil liberties issues that arerelated to sexuality and sexual health. It also works alongside human rights groups and agencies such as India's Lawyers Collective, Human Right Law Network, Amnesty International, International Gay and Lesbian Human Rights Commission. It has addressed cases of such cases and often runs workshops forNew Delhi Police. It also sensitises others to sexuality and gender-relatedissues of discrimination, physical harassment, corruption and human rights.
Section 377 of the Indian Penal Code (an 'Anti-sodomy Law') criminalises same sex sexual behavior irrespective of the age and consent of the people involved, posing one of the most significant challenges in effective HIV/AIDS projects within Indian gay and transgendered communities. The litigation has been going on since December 2002, when Naz filed Public Interest Litigation, with the intention of challenging Section 377 in Delhi's High Court.
Unfortunately, the Delhi High Court refused to consider their petition against Section 377. They argued that the Naz Foundation had no locus standi in the matter. Since nobody has been prosecutedfor the last twenty yearsunder Section 377, the Delhi High Courtmay not strike out the offending moribund in the absence of a petitioner with standing. However, there may be another High Court ruling on this section or evenIndia's Supreme Court, under the heading of "Public Interest Litigation (PIL).
Naz Foundation won its appeal in the Supreme Court against the High Court decision to dismiss the petition on technicalities. The Supreme Court decided that Naz Foundation did have relevant standing to contest a PIL in this case and sent the case back to the Delhi High Court to further review the case, which it did fromOctober 2006 to May 2008.
In the interim period, there was strong support for decriminalisation from a Delhi-based coalition of LGBT, women's and human rights activists, 'Voices Against 377'. Voices has supported the demand to 'read down' section 377 and exclude adult consensual sex from any further criminal prosecution. Furthermore, the movement for change has strong and influential backing from India's cultural elite. In September 2006, Nobel Laureate Amartya Sen and acclaimed writer Vikram Seth united with other prominent Indians in public life and demanded the abolition of Section 377 in an open letter. This document demands that 'In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.'
In May 2008, the Delhi High Court finally heard the case. However, there is division within the governing federal Congress Party Cabinet over the issue. The Ministry of Home Affairs has adopted a contradictory position to that of India's federal Ministry of Health when it comes to enforcement of Section 377 with respect to gay male sex.
At present, Section 377 continues to exist. Some homophobes use it to threaten and blackmail closeted lesbians and gay men. It has been abused in the past to harass people involved in safe sex work, such as condom distribution amongst Indian gay men. Police have also used itwheninvestigating complaints lodged by parents of the parties involved.
For instance, an Uttar Pradesh lesbian couple that eloped with one another were arrested and handed back to their parents, despite the fact that both women were over the age of consent. The police used Section 377as the legal basis for their arrest.
The debate continues to be waged. Arvind Narrain and Gautam Bhan have recently produced an impressive collection of academic articles and personal stories entitled Because I have a Voice: Queer Politics in India, which documents current Indian LGBT political concerns.
Since May 2008, events have continued apace. On June 29th, 2008, Delhi held its first ever gay pride march. Bangalore and Calcutta held similar events. On June 30, 2008, Indian Labour Minister Oscar Fernandes stated that he supported decriminalisation of consensual gay sex. Prime Minister Manmohan Singh also seems supportive.
On July 4, 2008, at the Delhi High Court supported the right of Indian LGBT activists to hold a gay rally. Finally, on July 23, 2008, Bombay High Court Judge Bilal Nazki also argued that Section 377 should be reviewed. And that is where the matter has to be left.
However, I imagine that pro-reform activists are heartened by the lack of organised public opposition to their reform initiatives, although apparently, it seems to still be an issue of contention within India's federal Cabinet, with Prime Minister Singh asking the feuding Ministers of Health and Home Affairs to sort the issue out once and for all, recently.
Arvind Narain and Bhan(ed) Because I Have a Voice: Queer Politics in India. New Delhi: Yoda Press: 2006
Open Letter on Section 377: http://www.openletter377.com/
Naz Foundation: http://www.nazindia.org/ Craig Young - 31st October 2008