Anti-gay law: will it go?

Hidden and marginalised, men who have sex with men (MSM) often lead dangerous lives, living in fear of society and the law, which makes criminals of them. The real issues facing them are not only the assertion of their identity and sexual preference but also acceptance as normal citizens, reports Aditi Tandon

FIGHTING FOR THEIR RIGHTS: Section of a recent rally for gay rights in New Delhi. Over 2000 persons turned up at Gay Pride parades held for the first time in Bangalore, Kolkata and Puducherry. — Photo by Mukesh Aggarwal

Union Health Minister Anbumani Ramadoss has raised expectations that the government may repeal the 148-year-old law criminalising sex between men. His declaration, at an international conference on AIDS in Mexico earlier this month, that Section 377 of the Indian Penal Code should be scrapped, had its desired impact back home, with gay rights groups welcoming the proactive stand.

While many countries have moved forward to recognise same-sex marriages, India is still groping in the narrow alleys of public morality and social good.

In this notion of public morality — which is enforced by the state — lies the rationale for Section 377, which dates back to 1860. This archaic law from the days of the Raj criminalises homosexuality by prohibiting "carnal intercourse against the order of nature", and goes on to punish such acts with imprisonment for life, or a term that may extend up to 10 years, and fine.

It is a different matter, though, that this law has seldom served its purpose. On the contrary, Section 377 has aided the exploitation of the sexual minorities who are denied their legal rights. There have been many cases of gays being rounded up by the police from their ‘cruising’ areas for the sole purpose of seeking sexual favours from them. Male sex workers remain particularly vulnerable to sexual exploitation, as the local policemen know about them and can threaten them under the existing law.

The fact is well documented and finds a mention in one of the strongest-ever statements made on this subject before the UN Commission on Human Rights. The mention came from Aditya Bandhopadhyay, a lawyer working for the rights of sexual minorities, who urged the commission to put moral pressure on India so that the threat of criminality hanging over the heads of sexual minorities is immediately removed.

Arguing his case, Bondopadhyay said: "Sexual exploitation or rape of homosexual men often turns violent, and sometimes even leads to gang rape, should the person refuse the favour. Also while most homosexuals, including sex workers in cruising areas, are now aware of the threat of HIV/AIDS and prefer safe sex, the policemen often insist on having unsafe sex. The violence is intensified if the victim resists unsafe sex. This has resulted in intense trauma for the victims and an increased fear of contracting HIV and STDs (sexually transmitted diseases)."

The fear is not without reason or research. In the just-concluded international AIDS conference at Mexico City, the American Foundation for AIDS Research shared its latest study on HIV vulnerability among MSMs revealing that they are 19 times more prone to infection.

Thus even though Ramadoss’ assurance is pleasing to the ears, it means little unless translated into action for changing the law. For years now, the Ministry of Home Affairs (MHA) has been against the repeal of Section 377 or its modification, on the grounds that such a move would be against "public morality" and would encourage delinquent behaviour and "unnatural sex".

The Naz India Foundation Trust, an NGO working to create sexual health awareness, had filed a public interest litigation challenging the criminalisation of consensual sex between adult males. The petition was heard in the Delhi High Court on May 19 this year. But the MHA has been consistent in its opposition to the repeal of Section 377.

The hearing dragged on, primarily because of the confusing stance adopted by the different ministeries of the Central Government. While the MHA, in its affidavit, had said the law was justified in the Indian context and should continue to serve as a deterrent against such "immoral acts", the National AIDS Control Organisation (NACO), which comes under the Health Ministry, favoured the petitioner’s stand. NACO sought a review of Section 377 in order to legalise homosexuality. The court questioned the government on how it would reconcile the contradictory affidavits.

With the final hearing of the case fixed for September, Rahul Singh, Naz Foundation’s coordinator of MSM issues, says, "We are not aware of any recent affidavit of the MHA where it has changed its stated position. Moreover, we have sought a review of the provision that consenting homosexual activity should be decriminalised. The law is redundant in present times. Even the UK, whose anti-sodomy laws had inspired the Section 377, legalised gay marriages three years ago."

While the UK recognised gay couples by enacting a civil partnership law on December 12, 2005, the Netherlands was the first country to grant acceptance to same-sex unions in 2001. In 2002, Brazil followed suit; then came Spain, South Africa and Canada in 2005, and most recently Norway on May 11 this year.

In India, too, a momentum has been building in favour of decriminalisation of homosexuality and other same-sex partnerships. On the legal front, it has found support in the Law Commission’s report, which recommended a new gender-neutral rape law to consider male-male rape as well as sexual assault of women by women as acts of sexual violence. The Law Commission also recommended repeal of Section 377, as did the National Human Rights Commission in its report on HIV and Human Rights.

Most recently, the Bombay High Court said a revision of the controversial Section was needed. Delivering judgment in the infamous Anchorage paedophilia case, Mr Justice Bilal Nazki and Mr Justice Sharad Bobde observed, "There are lots of changes taking place in the social milieu and many people have different sexual preferences, which are not even considered to be unnatural`85Therefore, it is high time that the provisions of law, which was made more than a century ago, are looked at afresh."

This biased law also prompted a group of intellectuals across the world to demand its repeal two years ago. The letter, signed by 100 leading figures from the fields of literature, film and academics (Amartya Sen, Vikram Seth and Arundhati Roy among others), said the law had been used to ‘systematically’ persecute, blackmail, arrest and terrorise sexual minorities and had spawned intolerance. "This is why we`85support the overturning of the law that criminalises romantic love and private consensual acts between adults of the same sex," the letter stated.

Section 377, which does not prohibit lesbian sexuality or conduct in India, has been used by the police to threaten women, too. In 1992, two women police officers of Madhya Pradesh, who were ‘married’, were charged with ‘obscene conduct’ and forced to resign from their jobs. In 1999-2000, a Malayalam newspaper reported seven suicides by lesbians in Kerala. In the same year, a lesbian couple from Orissa was separated forcibly following police intervention, forcing the two to attempt suicide leading to the death of one of them.

The latest sentinel surveillance data shows that the problem of HIV infection among MSMs continues to be serious. In India the HIV prevalence rate in this high-risk group averages 15 per cent, which is very high (HIV positivity above 5 per cent in any high-risk group is considered significant as per WHO standards). The highest HIV prevalence rate in the MSM population has been detected in Andhra Pradesh at 17.6 per cent, followed by Karnataka at 17 per cent. In New Delhi and Maharashtra, the prevalence rate is over 10 per cent, while in Gujarat, Goa, Orissa and Tamil Nadu it is more than 5 per cent but under 10 per cent.

NACO officials admit that it is difficult to reach out to MSMs, one of the high-risk groups for HIV/AIDS interventions.

"A major component of our intervention is partner treatment. But with MSMs, we can’t even do that as MSMs never come out openly because of the fear of law. We can’t bring them into the mainstream with the help of lawmakers or through other arms of the state machinery. As long as Section 377 exists, comprehensive HIV/AIDS intervention for MSMs will remain a challenge," says a NACO official.

The statement is corroborated by the recent findings of a study conducted by the Foundation for AIDS Research. The study said that a gay identity is not often disclosed by Asian men, making it difficult to reach MSM communities through various public health campaigns, which created awareness among gays that succeeded in lowering HIV rates among them in Europe and North America.

Among its startling conclusions, the study also finds that some public health campaigns on male sex workers have created a misperception among Asian MSMs that anal sex is safe and heterosexual sex is risky, exposing them further to HIV infection.

Back home in India, however, the real issue with MSMs right now is not so much as practising safe sex as the assertion of their identity and fight for existence. That explains the recent phenomenon of homosexual men coming open about their sexual orientation.

On June 29 this year, Delhi, Bangalore, Kolkata and Puducherry celebrated their first-ever gay pride parades, with over 2000 persons turning up for the assertion of their rights.

Many prominent men openly admitting their sexual preferences have further strengthened the cause of gay rights. Prince Manavendra Gohil from a conservative principality in Gujarat risked family criticism and public ostracism by openly declaring his gay preference. Famous fashion designer Wendell Rodericks formalised his union with his French partner in Goa. The two got married under the French law to skirt Section 377.

But not all homosexual men have the courage shown by Rodericks. Close to 10 million Indians pay a heavy price for their chosen sexual preferences by subsisting on the margins. As the state denies them the right to interact openly in society, they cruise in public spaces, under the prying eyes of the police. The encounters often turn devastating, thanks to a law that victimises more than it shields.