Legal to Love?
Gay Rights in India
India’s Health Minister Anbumani Ramadoss has echoed calls by gay rights activists to decriminalize homosexuality, a relic of the British Raj, writes Siddharth Srivastava.
Should homosexuality be legalized in India? The issue has attracted a bit of attention in India, in the recent past, with activists saying that while they can understand disapproval by sections of society, being gay should not be a criminal offense.
The same-sex community in India has been especially bolstered by the utterances by federal Health Minister Anbumani Ramadoss.
At the recently held 17th International Conference on AIDS in Mexico City, Ramadoss said, “Section 377 of the Indian Penal Code (IPC), which criminalizes men who have sex with other men, must go.’’
“Structural discrimination against those who are vulnerable to HIV such as sex workers and men having sex with men must be removed if our prevention, care and treatment programs are to succeed,” he added.
Section 377 that criminalizes homosexuality in India has been a subject of much controversy in India.
It states: “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment which may extend to ten years, and shall also be liable to fine.”
This means that the police in India, infamous for their corrupt ways, can arrest anybody who claims to be a practicing gay. Innumerable instances of harassment are reported.
The police also raid clinics and harass health workers trying to help gays, charging the workers with conspiracy to “unnatural sexual acts.”
This has driven a vast community of Indian gays and lesbians, with estimates ranging from 5 million to 50 million, further into the fringes of society.
However, the Indian gay community is upbeat, which was reflected in the annual gay parade held earlier this month Aug. 16 celebrating the community’s increasing self confidence.
It was in June 2003 that more than 100 people marched in a gay rights parade for the first time in Kolkata, in a rare display of activism for one of the country’s most underground cultures.
This year, too, sexual minorities, comprising lesbians, gays, bisexuals and transvestites, took to the streets of Mumbai and Kolkata to protest against the “socially discriminative” Section 377.
Braving bemused, unsympathetic, and at times, hostile responses from hundreds of bystanders, the men and women — many wearing makeup and jewelry — waved banners, including one saying, “Let us love and be loved.”
Others waved the rainbow flag, a symbol of the gay rights movement.
Nitin Karani, a gay activist of the Humsafar Trust, told reporters, “It was only when the British came that this law was introduced, Section 377 of the IPC. After so many years when the British have quit India this law is still here. We want this law also to quit India.”
Geeta Kumana of Mumbai-based lesbian group Aanchal Trust told local media, “It’s nice to know people at the top level are speaking for us.”
Yet, there are several hurdles to be crossed.
The Delhi High Court is presently hearing a public interest litigation, filed by Naz Foundation, a voluntary organization supporting gay rights, which has sought deletion of Section 377.
At the last hearing, the court instructed the federal government to arrive at a consensus on the issue and submit its reply by Sept. 18.
Naz has argued that due to fear of police action, consenting adult males are not stepping out of the closet and declaring themselves as gay, thereby hampering medical prevention or intervention in cases of HIV/AIDS.
The federal Ministry of Home Affairs responsible for the implementation of the IPC has said the dilution of Section 377 would open the doors for delinquent behavior that is against Indian ethos and acceptance by society.
In the past the government has argued before the court that homosexual practices cannot be legalized in India since “Indian society is intolerant to the practice of homosexuals/lesbianism.”
A few years ago, right-wing protesters forced cinemas nationwide to pull a film about lesbianism, Fire, by well-known director Deepa Mehta and starring leading actresses Nandita Das and Shabana Azmi.
A point in contention is also that the same section is used to prosecute for child abuse.
The law commission has, thus, suggested a separate section to specifically criminalize sexual contact with anyone younger than 16.
The gay community in India is in agreement. According to Karani, “Section 377 is needed so that children are not abused. Hence, it should be read down but not abolished.”
Arvind Narrain, a lawyer with Alternative Law Forum, told local media that the Indian government needed to reconcile the differing views and only then would the health minister’s statement hold value.
Many gay rights activists quote a well-researched work, “Same Sex Love in India,” which states that before the 19th century, love between men and between women was never actively persecuted or prosecuted, despite disapproval.
Among the high profile campaigners for the same sex community in India is writer Vikram Seth, who has been quoted to say: “HIV/AIDS in India is exacerbated by our ignorance and shame about sex. We simply don’t like to talk about it — even to impart or receive essential, life saving information.”
Seth, along with 16 of India’s best-known writers including Salman Rushdie, Kiran Desai and Amit Chaudhuri, has traveled the country to speak to homosexuals, drug addicts, policemen, vigilantes and sex workers. The result is a collection of essays.
Other activists highlight changes in attitudes toward homosexuality, as well as increasing recognition of the rights of gays all over the world.
They cite the U.S. where a USA Today/CNN/Gallup poll states that a majority of Americans favor legalizing civil unions for gay couples as an alternative to same-sex marriage. The poll found that 54 percent of those surveyed support civil unions.
Gay rights activists in India have been closely following the emotional struggle in the U.S. to balance various opinions.
“At least people should know that we exist,” is one comment on the Internet. “Even the United Nations recognizes that being gay is not a disease. We do not want sympathy and we do not want support. All we ask for is our right to live our life the way we want to without hurting others.”