Decriminalising Gay Sex in India
By Craig Young - 31st October 2008
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
