Is it history in the making or are we treading down a wearied track that leads to the inevitable dead end?
On 19 May 2008 the Delhi High Court started hearing final arguments on a petition seeking to change certain portions of the Indian Penal Code’s Section 377, leading to the decriminalization of homosexuality in India.
In its current form Section 377 states:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 152 [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.
It is the use of the term “voluntarily” that is basically the problem, and the petition seeks to exclude consensual sexual acts between adults from the purview of the law. Section 377 has been used — often arbitrarily given the nature of its ambiguous wording — to victimize sexual minorities, and also been used against sexual practices (both heterosexual and homosexual) when courts have deemed to interpret such acts as “against the order of nature”. Most importantly, it dangerously limits health service providers from accessing high-risk groups for HIV/AIDS interventions, not to mention the violation of the fundamental rights to life, health, privacy, and speech and expression that 377 brings in its wake.
The petition in question was first filed in 2001 by the Naz Foundation, a community-based organization that works on HIV/AIDS awareness, care and support issues. After being rejected in 2004, Naz went to the Supreme Court, which referred the case back to the Delhi High Court saying that the “matter had to heard expeditiously”. This final hearing is presently ongoing, and now positions petitions from Naz India, along with Voices Against 377, a group lobbying for change in the law on grounds of human rights of sexual minorites, Joint Action Committee, Kannur, an NGO that opposes all HIV/AIDS prevention efforts, and V.P.Singhal, who is opposing on grounds of traditional morality.
Interestingly, there is a stand-off between two arms of the government, something that apparently amuses the judges. The Health Ministry seeks to oppose any change to the existing law, saying that doing so would encourage “immoral acts”. On the other hand the National AIDS Control Organization’s statement puts forward the point that criminalization of homosexuality hinders their work, making it difficult to reach high-risk groups such as MSM to implement their prevention strategies, including provision of information on HIV/AIDS, and education for behaviour change and prevention tools.
Section 377 is a legacy of the days of British occupation, dating back almost 150 years. In 1967 the British law was amended to decriminalize consensual same-sex activity between adults, but the legislation continues to be in place in India. Individuals and organizations have fought long and hard to bring about a change in the law.
If you are interested in adding your voice against Section 377, consider joining hundreds of others, including an illustrious list of well-known Indians, in signing this letter. To find out more about Section 377: Voices Against 377.
(With inputs from Lawyers Collective press release)