The Naz Foundation is sure to go down in history right by every other Civil Rights giant of the past. Maybe, ten years down the line, India will have its own academy award winning version of Milk; we could even call the movie Naz (Pride). Taking on not only the Indian legal system and the convoluted colonial laws that underlie it, but also challenging the many million conservatives who would not recognize that people with alternative sexual orientation too, are people and that means they have all the same rights as everybody else, is a more-than-Herculean task. So it’s no wonder that they were met with an elated, amazed, exhilarated Indian LGBT community (in India and around the world), when the Delhi High Court finally decided to overturn IPC 377, the criminal code that made gay sex illegal.
The anti-gay-sex law first appeared in India in 1861, when Lord Macaulay, notorious for other high-handed policies, including a “top-down” education system that excluded India’s lower castes, and others instituted the Indian Penal Code with its Section 377. This section criminalizes “carnal intercourse against the order of nature” and makes it punishable with up to 10 years’ imprisonment. The section doesn’t directly deal with homosexuality in as many words. But in branding some forms of sexual behaviour “against the order of nature”, it becomes no more than an excuse for irresponsible law enforcing authorities to harass people. Besides this, it renders legality to a backward and anachronistic, not to mention colonial, idea that the law has anything at all to do with the sexual behaviour of aware and consenting adults.
As an article published on Gaysi says, the section dealt only with gay men, as it specifically mentioned “penetration by the male organ” (amendment in 2000), and not with lesbians and transgendered people. So, technically, being lesbian or transgendered has never been “against the law”. This by no means indicates, however, that these groups were never harassed, or that they lived happy, out-of-the-closet lives. No, stories of lesbians running away to different cities, being forced to marry men and told to “reform” are abundant. Transgendered people are an integral part of cultural life in India, with hijras often considered auspicious. Still, as late as 2008, about 100 transgendered people were driven out of Bangalore (yes, India’s “silicon city”, home of the techies and land of outsourcing) in a measure to stop their “immoral activities”.
The Home Ministry offered a defence of the section, reported in the Indian Express, and said that the law was invoked more often to deal with child sexual abuse and rape, rather than with homosexuality. This opinion was also expressed in letters to the editor published in The Hindu and the New Indian Express on July 2nd and 3rd.
This argument, however, doesn’t hold strong. For one, IPC 375 and 376 deal exclusively with rape. Further, as the Naz decision notes, non-consensual sex between people of the same-sex is rape too. There is no doubt of this. The question is would we ban heterosexual intercourse simply because there’s a lot of rape around? No. The thing to do is tighten rape laws. The same works for gay people too.
As for child sexual abuse, there are no separate laws at all, and the rape and molestation laws (sections 375, 376 and 354 of the IPC) are applied to cases of child sexual abuse as well. Section 377 has been invoked in some cases to deal with rape where the offense involves anything but vaginal penetration. It’s a matter of shame that India has no separate laws dealing with child sexual abuse, particularly as this crime is not necessarily limited to rape, and certainly not to sodomy alone. In fact, it is this author’s opinion that the repeal of Section 377 offers the perfect opportunity to frame these laws without making highhanded generalizations about “unnatural” sex, and instead focus on protecting children from every kind of sexual abuser – rapists, molesters, voyeurs and others. Banning gay sex instead of taking this more progressive route is illogical and unfounded.
Another criticism I found in a lot of letters to the editor in various papers is that making gay sex legal will only help spread various diseases like HIV. While I’m sure this is a subject that has been discussed to death, I’d like to say once more on this webzine, no, on the contrary, it might actually do something to control HIV infection. A lot of gay people don’t receive help on time simply because they’re afraid to say they are gay, if and when they meet doctors, counsellors and other specialists, because what they are was “illegal”. Repealing section 377 is only bound to embolden them to seek help, get protection and information and make sure they aren’t getting infected.
Another oft-repeated complaint is that decriminalizing homosexuality will break down India’s family system. Unlikely and rather illogical, is all I have to say. Is it better to force people into heterosexual relationships, alienate them from what they really are and keep up a facade of the “perfect Indian family” than let people be what they are, and proudly? Admittedly, legal legitimacy is not social legitimacy – so decriminalizing homosexuality is not necessarily going to make it easier for people to come out to their families, but it is a step forward. India has a strong family-oriented culture, but how is it bad for this culture to turn more honest and accepting?
The repeal of section 377 is a historic decision. It extends to one-sixteenth the gay people in the world the right to be what they are openly, without guilt or fear of breaking an archaic law. It is also a triumph of the right to privacy – who anyone sleeps with (with the consent of both parties) is frankly no one else’s business. Finally, also reinforces confidence in India’s democracy as a system that listens. The Pride marches across India’s metros to mark the 40th anniversary of the Stonewall uprising in New York were the people’s verdict –loud and clear.
Pic Source: The New York Times
The Author Sneha Krishnan is an economics-obsessed, pasta-loving history student bound for Oxford this fall. She is usually found curled up in sofas with her ever-present macbook perched on some surface in the vicinity. Sneha first started thinking about doing Sa when she and Shweta realized that they were ranting about the day's news/ happenings practically everyday and everything they said had something to do with their feminist convictions. So they wondered how it would be to write about these things and more... and KaBoom... seven months and laborious code-learning (trial and error, the only method for us) sessions later, Sa came to be. Sneha’s favourite pastimes, besides feminism and Sa, are reading the New York Times, playing Scrabble and watching every movie that looks remotely interesting.
I found your site on technorati and read a few of your other posts. Keep up the good work. I just added your RSS feed to my Google News Reader. Looking forward to reading more from you down the road!
Reply