Sunday, July 12, 2009

"India's Gay Day"

My first day back in Bombay, as I groggily went about my home-coming rituals, I caught sight of a headline in the morning newspapaer, loudly proclaiming India's Gay Day. I balked at the headline, presuming that it had something to do with Pride celebrations across the country (only in the second year in India's history). Turns out, the article was actually a report on overturning of colonial era penal code that criminalized homosexuality, or as someone helpfully pointed out, the homosexual act. This of course is momentous, although the ruling came down from the Delhi HC, and within days of it, appeals have been made to the Supreme Court. Hopefully, things will go down well at that level too, but who knows. From what I hear though, the hearings at the SC are to be held on an expedited basis, which is probably a good thing.

In any case, for a couple of days thereafter, there were numerous celebratory articles in the dailies. Those in the color sections of the newspaper (such as the Bombay Times) were of course titled in bright pink. (I can't make up my mind if this pink-stuff plays into absurb stereotypes, or whether it's meant to signify some kind of reclamation. I'm leaning towards the former...) And the obligatory "interviews" with celebrities on their thoughts about the ruling - although, as far as I know, most of them were straight, pretty hetero. And of course, "good-natured" jokes about being gay. The one common thing that ran through all these pieces, was the constant reference to "the gays."

I was hoping to have read and researched this some more, so that I could write a more informed analysis. But my week thus far has been plagued by jet-lag and sickness and very low-energy. So, I figured I'll just post a few articles about this, because even if the reporting on it was less-than-satisfactory, the issue itself is pretty significant.

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RIGHTS-INDIA: India's Historic Gay Ruling
By Ranjita Biswas

KOLKATA, Jul 3 (IPS) - A day after the Delhi High Court's landmark judgment to overturn a colonial law that criminalised homosexuality, Indians expressed mixed reactions to the verdict.

After almost 150 years of introduction of Section 377, a law of the Indian Penal Code (IPC) which describes same-sex relationships as an "unnatural offense", the Delhi High Court overturned the law on July 2, ruling that gay sex between consenting adults would no longer be unlawful.

"Homosexuals in the country now have the right to live like any other citizen and without being treated like criminals," Anjali Gopalan, the director of the Naz Foundation, a New Delhi-based gay rights nongovernmental organisation.

But she cautioned that the "judgment doesn’t mean that homosexuality is legal, but that adults in consensual homosexual relationship cannot be discriminated against."

Section 377 of IPC was introduced in India in 1860 during the British colonial period indicting homosexuality as "carnal intercourse against the order of nature" and thus punishable by law. In Britain, the Victorian law was scrapped in 1967, but its former colonies chose to cling to it. Since 1994, gay rights activists have consistently demanded that this law be changed, citing it as discriminatory and misused to harassed homosexuals.

But their demand had not been to completely abolish the Section, but only "read down" the law, given Section 377 is instrumental in prosecuting other crimes like pedophilia.

The high court in its ruling recommended those parts of the section 377 that deal with sexual offenses such as "non-consensual sodomy" be transferred to other sections of the IPC that deal with rape, like 375 and 376. The verdict clarified that Section 377 will be enforced for sex offenses involving minors.

Activists have long contended that Section 377 exacerbates the spread of HIV infection among the MSM (Men having Sex with Men) and transgender community.

"Oppressive laws such as Section 377 drive people underground making it much harder to reach them with HIV prevention, treatment and care services." said Michel Sidibé, the executive director of UNAIDS, a nongovernmental organisation.

However, the controversial ruling has become a hot potato in New Delhi’s corridors of power.

"There are several opinions on the matter," in the Indian government, Veerappa Moily, union law minister, told the Indian media on July 3.

The minister is opposed to repealing the law on moral grounds, citing that the country was not yet ready for it and advocated retaining it to avoid "far reaching consequences."

But India’s Health Ministry welcomes the decision to amend the law.

Last year, at the 17th International AIDS Conference in Mexico City, Anbumani Ramadoss, the Indian union minister for health and family welfare said, "Structural discrimination against those who are vulnerable to HIV such as sex workers and MSM must be removed if our prevention, care and treatment programs are to succeed. Section 377 must go."

But social groups are upbeat.

"Personally it’s a feeling of lightness, as if a huge burden has gone off my shoulders," said Pawan Dhall, the director of ‘Solidarity and Action Against the HIV Infection in India’, a Kolkata-based nongovernmental organisation. "It’s a sign that progressive India is a place for everyone, where people of different sexual orientations can live together."

But the battle for gay rights is hardly over, he cautions.

"The Delhi HC decision is the first hurdle we have crossed. It’s a big morale booster for us who work in this field," he said. "We’ve to be always careful so that we are not seen as breaking the law. Violence against the members of the community has also been common. We didn’t have any standing to fight our case. Now we have. It will also have a social impact."

The decision has not gone down well with religious conservatives who have long regarded gays and lesbians as ‘aberrations’.

As soon as the Delhi HC ruling was in the public domain, sections of Muslim religious leadership, Catholic Church and Hindu conservatives came out strongly against the decision.

Rev. Babu Joseph, a spokesman for the Catholic Bishops Conference of India said the decision was "disappointing" but clarified that though homosexuals should not be treated as criminals, "we cannot afford to endorse homosexual behaviour as normal and socially acceptable."

Even before the verdict came out, Jamiat-e-Ulema-e-Hind's Maulana Mehmud Madani stated that "Homosexuality is Haram (prohibited) and an immoral act. It is unnatural. It is a punishable offence in Shariat. It is against the age old traditions and culture of India and of Islam."

Some Hindu religious leaders also condemned it calling it "against Indian culture."

"People who have resisted our stand saying it’s against ‘Indian culture’ ignore human rights," Dhall argued. "Besides, if culture means inclusiveness, being honest hard-working citizens of a country, is it [a] prerogative of only a certain section people?"

The ruling, according to Saeed, a gay rights activist from Pakistan, said the historic verdict should set a precedent for "the entire ex-British-colonized world still clinging to the absurd laws."

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Commentary posted on Sepia Mutiny by Amardeep on September 17, 2006

Section 377
The writer Vikram Seth, along with a group of activists, recently signed an open letter directed to the Government of India and the Delhi High Court, asking it to repeal Section 377 of the Indian Penal Code. This is the section that prohibits sexual relations between men as well as other “unnatural” acts. Amartya Sen has put out a follow-up open letter with dozens of prominent Indian intellectuals and celebrities signing on.

Human Rights Watch put out a report in 2002 criticizing the law because it weakens efforts to mobilize against AIDS. In the NYT Somini Sengupta mentions that the government’s own National AIDS Control Agency has stated that the law hampers AIDS prevention and treatment programs.

The key actor in all this a group called the Naz Foundation India Trust, which sued the government in 2004 to request the repeal of the law. The case was initially refused by the Delhi Court, but the Indian Supreme Court required the Delhi Court to examine the case on its merits. The next hearing is scheduled for October 4. The recent agitations seem to be oriented to influencing the outcome of these particular hearings.

For reference, here is the text of the 1861 law:
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, animal, shall be punished with 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.

Explanation- Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section. (link)

This is a very bad, outmoded law. It is, for one thing, euphemistic to the point of absurdity. Who exactly defines what is “against the order of nature”? I believe the earlier versions of the Penal Code didn’t include the “explanation,” so one obvious question is whether it includes, to be quite direct, everything but the heterosexual missionary position. (The term “sodomy” once included oral sex as well as masturbation; it is still only euphemistically defined as “any sex act that does not lead to procreation”.)

More generally, the law has many deleterious effects that its critics have explored. Let’s have a look at some of these arguments, as well as the government’s response to them so far.

Here are some quotes from a speech by Aditya Bondyopadhyay (of Naz Foundation) that makes many good points:

Very few cases on this law have actually reached the upper courts level in all this time, but the law continues to be a potent tool of oppression. It provides the impunity to a venal police to extort money, blackmail, indulge in violence, and extract other favors, including sexual favors, by dangling this law on homosexual males and hijras, a traditional social group of transvestites and transsexual persons. It impedes sexual health promotion activities like HIV/AIDS Interventions amongst same sex attracted males. It discourages reporting of male rape, and therefore encourages such rape, often by police. In sum, it disrupts the social existence of all same sex attracted persons, erodes their dignity and self respect, and reduces them to a sub-human level of existence.

Aditya Bondyopadhyay also quotes from the government’s initial response to the case:

After a few initial paragraphs of legal arguments, the government goes on to reveal its real face by saying in paragraph 9: “deletion of the said section can well open flood gates of delinquent behaviour and be misconstrued as providing unbridled licence for the same.

In Paragraph 31 of the reply the Government goes on to state: “law does not run separately from society. It only reflects the perception of the society. Public tolerance of different activities, changes and legal categories get influenced by those changes. The public notably in the United Kingdom and the United States of America have shown tolerance of a new sexual behavior or sexual preference but it is not the universally accepted behavior.

In paragraph 32 of the reply the government states: In fact, the purpose of this section 377 IPC is to provide a healthy environment in the society by criminalizing unnatural sexual activities against the order of nature.” And then goes on to add in Paragraph 33: “If this provision is taken out of the statute book, a public display of such affection would, at the most, attract charges of indecent exposure which carry a lesser jail sentence than the existing imprisonment for life or imprisonment of 10 years and fine. While the Government cannot police morality, in a civil society criminal law has to express and reflect public morality and concerns about harm to the society at large. If this is not observed, whatever little respect of law is left would disappear, as law would have lost its legitimacy”.(link)

This reasoning is flawed in any number of ways, one of which being the reference to “new sexual behavior or sexual preference.” The behavior is not “new,” or it wouldn’t have been outlawed in 1861; it is the recognition of it as a fundamental human right that is new. One could also argue that since the law isn’t often enforced, it already doesn’t have much legitimacy. And third, sexual acts between consenting adults in private pose no harm for anyone, whereas the existing law has been shown to cause harm to large numbers of people — including many people who are not gay (i.e., the large number of heterosexuals with HIV/AIDS in India).

The old argument that the majority of Indians would probably support this law doesn’t hold water either. The majority of Indians probably still support the practice of dowry, but no one would argue that that is a good reason to reinstitute it. Justices of the court, as non-elected officials, are in a unique position to do what is right rather than what is going to be popular.
Also, supporters of this law (along with supporters of the old anti-Sodomy laws in the U.S.) often claim that removing it would legalize pedophilia. That simply isn’t true; existing laws would continue to protect children from sexual predators.

Importantly, it’s not just lefties who are on board with this campaign; among the original signatories to Seth’s letter is Soli Sorabjee, the former attorney general and a BJP official, according to the New York Times.

One final thought: before Americans liberals get on their (our) high horse about the barbaric nature of these laws, we should keep in mind that the Supreme Court’s ruling in Lawrence v. Texas, which struck down the remaining anti-Sodomy laws in 12 American states, only came down in 2003. Then again, Section 377 applies to all Indian states equally. In my view, it is time to erase this relic of Victorian morality.

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