We're only a part of you
As a tool for social change, the law must lead the way by shrugging off the baggage of Section 377 of the IPC which criminalises consensual homosexual sex, writes Vivek Divan
In June 2001, at the UN General Assembly Special Session on HIV/AIDS, proceedings were stalled by nations with particularly poor human rights records to prevent a gay organisation from addressing a Round Table on Human Rights and HIV/AIDS. Due to hectic lobbying by more enlightened country delegates and protests by NGO representatives, the initiative failed. The Indian government did us proud at that time when it stated on the floor of the house that men who have sex with men (MSM) face a heightened vulnerability to HIV/AIDS and any dialogue on the epidemic must allow their voice to be expressed and heard.
Apart from being the official line of the Indian government, the statement was significant in other ways. By implication it recognised certain aspects that human rights activists and marginalised sexualities have been trying to highlight for several years - that marginalised sexualities are very much a part of Indian society (and are not either some figment of the imagination or part of a larger "foreign conspiracy"); that they are a significant number (and not some few thousand sprinkled around the country) and that they are worthy of attention from a mature, considerate and humane society (and not to be ignored from, discarded by or left at the fringes of social and policy discourse).
Since then the Indian government has revealed its forked tongue by failing to back what it said in New York through its pronouncements in New Delhi. In a public interest constitutional challenge to the anti-sodomy law (Section 377, Indian Penal Code), the Government has opposed the law's removal. Section 377 is an archaic and alien provision, the legacy of Victorian England, which, inter alia, criminalises non-procreative consensual sex between adults, both homosexual and heterosexual. The case seeks a "reading down" of the law so that it continues to apply to non-consensual sex (including that which involves children) but excludes non-procreative, adult consensual sex (and thereby homosexual sex too) on the grounds that the law violates the individual's fundamental rights to equality, expression, privacy and health.
The Government's regressive response to this challenge essentially states that public opinion/morality and the current social context in India do not favour deletion of the law. It is worth asking on what basis the Government reaches this conclusion. Has it taken a poll? I wouldn't be surprised if Indians turned out to be rational and tolerant enough of the non-coercive sexual conduct of others, especially if they are informed that it could be their sons and daughters, brothers, sisters and friends who could be gay and whose sexual conduct would therefore be criminalised by Section 377.
And what is this "public morality" the Government refers to? Whose morality? Did it conclude that "public morality" required dowry or sati to be criminalised when legislating on those issues? And since when has democracy meant majoritarian rule and minority oppression?
The Government also states that homosexuality/sodomy is still an offence in a large number of countries. Here are some countries whose ideals the Indian government aspires to: Malawi, Myanmar, Senegal, Saudi Arabia, Nicaragua, Somalia - evidently a much-coveted club of humanism and progress, which has a membership composed of several other countries of the same ilk.
Importantly, the Government's position flies in the face of recommendations of several of its own advisory bodies - the National Human Rights Commission, Planning Commission and Law Commission - all of whom have suggested the removal of Section 377. Moreover, its own agency, the National AIDS Control Organisation, funds and supports NGOs who distribute condoms and safe sex information to MSM. (Of course, this agency has shamelessly failed to bring this fact and the hindrance that Section 377 creates to its life-saving work to the notice of the court).
In this environment of fear, prejudice and hypocrisy, some facts need to be emphasised with respect to homosexuality and the law. Firstly, the law is used to oppress, abuse and exploit those who are homosexual or indulge in homosexual sex (as was made clear by the egregious manner in which trumped up charges were made under Section 377 against four allegedly gay men in Lucknow in January 2006). But homosexuals continue to indulge in sex with each other despite the law, although many fail to escape its draconian grasp.
Which leads us to the second fact - that same-sex attraction is an innate trait in a certain number of human beings (as has been conclusively shown by science and anthropology). It is unlikely that people would continue to indulge in sexual conduct that was severely sanctioned against by law and society if such conduct was not so inherent and at the core of their sense of being. We are not gluttons for punishment. Same-sex attraction's intrinsic nature should also remove the irrational fear that if sodomy were to be legalised, same-sex attraction would "spread" and jeopardise family structures. This has never been the case where the law has progressed. Let us face it: those who express same-sex attraction will continue to do so and those who do not, will not.
If homosexuals had the assurance of confidentiality, they would tell you how fundamental their attraction for persons of the same sex is and from where it emerged. Getting to know them would also reveal that homosexual orientation knows no era, class, caste, religion or geography. And that those with such orientation are not individuals afflicted by a disease, perversion or mental disorder but persons who productively contribute to the everyday life of this nation; be they cleaners, accountants, drivers, waiters, students, journalists, lawyers, artists, daily wage labourers, doctors or law enforcement personnel. That many homosexuals have been some of the foremost thinkers, leaders, artists and entrepreneurs of their time is also well known.
Yet, Section 377 exists and continues to be misused to harass and extort from those who are perceived to be homosexual or challenge gender stereotypes of appearance and demeanour. Undoubtedly social stigma contributes to the marginalisation of homosexuals, but criminalisation reinforces this inequity. This overall atmosphere leads to severe vulnerability by encouraging covert conduct that erodes the dignity of the individual and reinforces fear, trauma, shame and self-hate, often leading to duplicitous lives where homosexuals are forced into heterosexual marriages.
Fortunately, better understandings of self, more information on sexuality and the profound courage of many homosexuals are creating spaces, albeit slowly and against severe odds, in which persons with same-sex orientations are able to share their feelings with family and friends. This has engendered small but significant support structures. This growing atmosphere is bound to debunk myths and stereotypes about homosexuality and create healthy relationships within the family and in society at large. But as a tool for social change, the law must lead the way by shrugging off the outdated and unreasonable baggage of Section 377. Surely the objective of the rule of law and democracy is to protect the blameless outsider, the faultless oppressed.
It is incumbent on the Government to support such measures, especially if it purports to be the government of a progressive, inclusive and humane nation. By towing an uninformed and paranoid line, it fails to reflect the tolerance of its polity and seems eager to condemn its own homosexual citizens whose basic right to lead wholesome lives has been ignored for much too long. They have truth on their side and now they demand justice.
Divan is a human rights lawyer and gay activist
Found inthe Pioneer
In June 2001, at the UN General Assembly Special Session on HIV/AIDS, proceedings were stalled by nations with particularly poor human rights records to prevent a gay organisation from addressing a Round Table on Human Rights and HIV/AIDS. Due to hectic lobbying by more enlightened country delegates and protests by NGO representatives, the initiative failed. The Indian government did us proud at that time when it stated on the floor of the house that men who have sex with men (MSM) face a heightened vulnerability to HIV/AIDS and any dialogue on the epidemic must allow their voice to be expressed and heard.
Apart from being the official line of the Indian government, the statement was significant in other ways. By implication it recognised certain aspects that human rights activists and marginalised sexualities have been trying to highlight for several years - that marginalised sexualities are very much a part of Indian society (and are not either some figment of the imagination or part of a larger "foreign conspiracy"); that they are a significant number (and not some few thousand sprinkled around the country) and that they are worthy of attention from a mature, considerate and humane society (and not to be ignored from, discarded by or left at the fringes of social and policy discourse).
Since then the Indian government has revealed its forked tongue by failing to back what it said in New York through its pronouncements in New Delhi. In a public interest constitutional challenge to the anti-sodomy law (Section 377, Indian Penal Code), the Government has opposed the law's removal. Section 377 is an archaic and alien provision, the legacy of Victorian England, which, inter alia, criminalises non-procreative consensual sex between adults, both homosexual and heterosexual. The case seeks a "reading down" of the law so that it continues to apply to non-consensual sex (including that which involves children) but excludes non-procreative, adult consensual sex (and thereby homosexual sex too) on the grounds that the law violates the individual's fundamental rights to equality, expression, privacy and health.
The Government's regressive response to this challenge essentially states that public opinion/morality and the current social context in India do not favour deletion of the law. It is worth asking on what basis the Government reaches this conclusion. Has it taken a poll? I wouldn't be surprised if Indians turned out to be rational and tolerant enough of the non-coercive sexual conduct of others, especially if they are informed that it could be their sons and daughters, brothers, sisters and friends who could be gay and whose sexual conduct would therefore be criminalised by Section 377.
And what is this "public morality" the Government refers to? Whose morality? Did it conclude that "public morality" required dowry or sati to be criminalised when legislating on those issues? And since when has democracy meant majoritarian rule and minority oppression?
The Government also states that homosexuality/sodomy is still an offence in a large number of countries. Here are some countries whose ideals the Indian government aspires to: Malawi, Myanmar, Senegal, Saudi Arabia, Nicaragua, Somalia - evidently a much-coveted club of humanism and progress, which has a membership composed of several other countries of the same ilk.
Importantly, the Government's position flies in the face of recommendations of several of its own advisory bodies - the National Human Rights Commission, Planning Commission and Law Commission - all of whom have suggested the removal of Section 377. Moreover, its own agency, the National AIDS Control Organisation, funds and supports NGOs who distribute condoms and safe sex information to MSM. (Of course, this agency has shamelessly failed to bring this fact and the hindrance that Section 377 creates to its life-saving work to the notice of the court).
In this environment of fear, prejudice and hypocrisy, some facts need to be emphasised with respect to homosexuality and the law. Firstly, the law is used to oppress, abuse and exploit those who are homosexual or indulge in homosexual sex (as was made clear by the egregious manner in which trumped up charges were made under Section 377 against four allegedly gay men in Lucknow in January 2006). But homosexuals continue to indulge in sex with each other despite the law, although many fail to escape its draconian grasp.
Which leads us to the second fact - that same-sex attraction is an innate trait in a certain number of human beings (as has been conclusively shown by science and anthropology). It is unlikely that people would continue to indulge in sexual conduct that was severely sanctioned against by law and society if such conduct was not so inherent and at the core of their sense of being. We are not gluttons for punishment. Same-sex attraction's intrinsic nature should also remove the irrational fear that if sodomy were to be legalised, same-sex attraction would "spread" and jeopardise family structures. This has never been the case where the law has progressed. Let us face it: those who express same-sex attraction will continue to do so and those who do not, will not.
If homosexuals had the assurance of confidentiality, they would tell you how fundamental their attraction for persons of the same sex is and from where it emerged. Getting to know them would also reveal that homosexual orientation knows no era, class, caste, religion or geography. And that those with such orientation are not individuals afflicted by a disease, perversion or mental disorder but persons who productively contribute to the everyday life of this nation; be they cleaners, accountants, drivers, waiters, students, journalists, lawyers, artists, daily wage labourers, doctors or law enforcement personnel. That many homosexuals have been some of the foremost thinkers, leaders, artists and entrepreneurs of their time is also well known.
Yet, Section 377 exists and continues to be misused to harass and extort from those who are perceived to be homosexual or challenge gender stereotypes of appearance and demeanour. Undoubtedly social stigma contributes to the marginalisation of homosexuals, but criminalisation reinforces this inequity. This overall atmosphere leads to severe vulnerability by encouraging covert conduct that erodes the dignity of the individual and reinforces fear, trauma, shame and self-hate, often leading to duplicitous lives where homosexuals are forced into heterosexual marriages.
Fortunately, better understandings of self, more information on sexuality and the profound courage of many homosexuals are creating spaces, albeit slowly and against severe odds, in which persons with same-sex orientations are able to share their feelings with family and friends. This has engendered small but significant support structures. This growing atmosphere is bound to debunk myths and stereotypes about homosexuality and create healthy relationships within the family and in society at large. But as a tool for social change, the law must lead the way by shrugging off the outdated and unreasonable baggage of Section 377. Surely the objective of the rule of law and democracy is to protect the blameless outsider, the faultless oppressed.
It is incumbent on the Government to support such measures, especially if it purports to be the government of a progressive, inclusive and humane nation. By towing an uninformed and paranoid line, it fails to reflect the tolerance of its polity and seems eager to condemn its own homosexual citizens whose basic right to lead wholesome lives has been ignored for much too long. They have truth on their side and now they demand justice.
Divan is a human rights lawyer and gay activist
Found inthe Pioneer
