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India and Section 377: The Struggle Continues

Tue 26 Jan 2016 In: Comment View at Wayback View at NDHA

It seems that Section 377 of the colonial era Indian Criminal Code may not last out the tenure of the current federal Bharatiya Janata Party (BJP) government. What is leading to this welcome turn of events and could the anti-gay vestige of the British Raj finally be struck down? When the centre-right BJP was elected to federal power after several wounding Congress Party financial bribery and corruption scandals, there were concerns that the Hindu nationalist party might try to obstruct the repeal of Section 377. In actual fact, something different seems to have happened and the BJP seems as differentiated as the Congress Party Opposition on the issue of repeal and reform. Some Cabinet ministers favour reform due to portfolio ministerial advisors within the Indian civil service, and there is still continuing pressure from Bollywood film celebrities, liberal high-ranking Indian judges and prominent cultural and literary figures to end the existence of the anti-gay vestige. Against that, there is pressure against repeal from elderly interfaith male religious leaders, individual Hindu gurus, yogis and astrologers, the Jammu and Kashmir Panthers Party and other religious social conservatives. The split seems to be primarily generational, given that most of the opposition to change seems to be somewhat older than the repeal contingent. As for the BJP, it may be the case that some of its younger MPs and supporters are predominantly fiscal conservatives and not religious social conservatives. As for Hinduism, matters are complicated by the fact that unlike Christianity and Islam, but like Buddhism, that world faith has no central source of authority. Complicating matters is Indian society's very different attitude toward hijras. The term hijra roughly equates with transgender, but doesn't exactly map onto it. It includes male to female transsexuals, but also eunuchs/castrati and intersex people. Within traditional Indian pre-colonial societies,hijra were recognised as religious intercessors, wedding entertainers and accorded some social status. Because of modernisation and urbanisation, many now find that they need to resort to sex work apart from rural religious duties. However, because they are a traditional Indian gender minority, the Indian Supreme Court and Parliament have passed the Rights of Transgendered People Act, but questions remain over whether the legislation will be enforced adequately across the sprawling but impoverished subcontinent. Meanwhile, with the Indian Supreme Court's conservative decision against retaining the Delhi High Court's repeal of Section 377 from the Indian Criminal Code until India's federal Parliament decides otherwise, there are still determined efforts underway to do just that. Last year, on December 15 2015, MP Shashi Tharoor of the Congress Party Opposition tried to get matters moving by introducing a private members bill against Section 377. Unfortunately, it was then defeated, 71-24. However, Mr Tharoor is not willing to let the matter lie there. Indeed, he obtained support across party lines for his repeal attempt. Meanwhile, an angry Indian LGBT group has complained to BJP President Narenda Modi about the continued inaction on repeal of Section 377. It looks as if the issue will not recede in a hurry, much like that which is centred on Singapore's Section 377 of its own Criminal Code, another British colonial legislative relic. Recommended: "Shashi Tharoor's bill to decriminalise homosexuality defeated in Lok Sabha" Indian Express: 18.12.2015:http:// article/india/india-news- india/shashi-tharoors-bill-to- decriminalise-homosexuality- defeated-in-ls/ "IP Section 377: Indian Penal Code" (2016): section/377/ Wikipedia/Section 377 of the Indian Penal Code: Section_377_of_the_Indian_ Penal-Code Michelle O'Toole: "New Delhi Pride marches in defiance of anti-LGBT law" Pinknews: 30.11.2015:http://www. india-new-delhi-pride-marches- on-in-defiance-of-anti-lgbt- law/ Craig Young - 26th January 2016    

Credit: Craig Young

First published: Tuesday, 26th January 2016 - 11:46am

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