Voices Against 377 Get LOUDER!

Newsletter May – Aug 2004

‘Down with 377’, ‘My body my rights’, ‘ghar ghar mein jalti hai beti; lesbian, gay, bi, hijra, aur kothi’ were some of the slogans at the dharna against Section 377 held in Delhi on 1st July 2004. Placards displayed the wry humour of Voices Against 377, a Delhi-based coalition of women’s groups, child rights groups, human rights groups and groups working for sexual rights including gay and lesbian rights. Some of the more catchy slogans included, ‘One should never lose hope, it can strike anyone at anytime’, ‘heterosexuality is not normal, it’s just common’, ‘same difference?’ and ‘pyaar hua ikraar hua; gay hua to kya hua’.

The dharna was held with the view to build pressure before the next hearing of the case in the Delhi High Court asking for a reading down of Section 377 of the IPC, which criminalizes all sexual acts as ‘unnatural’. A memorandum was handed over to HR Bhardwaj, the Minister for Law and Justice.

The memorandum expresses concern over the manner in which the NDA Government had responded earlier to the Writ Petition in the Delhi High Court. The NDA argued that ‘Indian society by and large disapproves of homosexuality, and the disapproval was strong enough to justify it being treated as a criminal offence even where adults indulge in it in private’, and that ‘decriminalizing’ would amount to ‘opening of floodgates of delinquent behaviour.’ Rather than addressing the substantive issues of fundamental rights guaranteed to all by our Constitution, the NDA attempted to classify what it meant to be ‘Indian’ and narrowly define ‘Indian culture’ along its fundamentalist Hindutva lines. It was a violent act of exclusion of all those who did not suit the Hindutva brigade’s definition of ‘Indian’.

The memorandum also refutes the fallacious argument that Sec 377 should be retained to deal with child sexual abuse. Not only does 377 penalise even consensual same sex acts, it is inadequate to deal with child sexual abuse, which calls for a more comprehensive law, said the memorandum.

The memorandum further highlights that Section 377 has long been a source of harassment, extortion, sexual abuse and blackmail of hijras (eunuchs) and men who have sex with men, by the police. These cases are rarely reported, though documentation reveals their wide prevalence (to whom does one complain when the ‘protector’ is the perpetrator?). The movement against discrimination on the basis of sexual orientation and gender emerged as a space for bringing these experiences into the public domain. The most recent case to have received public attention is that of Kokila, a hijra who was first raped by 10 goondas and then by several policemen in a police station in Bangalore, in mid-June.

Section 377 also forms the basis of violence carried out by non-state actors against non-heterosexual people. Cases have been documented where families use 377 to imprison women at home, force them into marriage or drive them to suicide. Such is the impact of this violence that, in some parts of the country, a pattern of suicides by young women has emerged. In Kerala, for example, suicides by lesbian women are reported on an increasingly regular basis. Section 377 forms an important part of this context of violence and its mere existence contributes to a culture of injustice by strengthening discriminatory social attitudes, says the memorandum.

An important aspect brought out in the memorandum was that of mental health and well-being of same-sex desiring individuals. Section 377 has meant that gross violations, such as those entailed in reparative therapies (therapies aimed to change the sexual orientation of a patient through the administration of nausea inducing drugs and shock therapy), are not even recognised as human rights violations. The National Human Rights Commission rejected the petition filed in the case of a patient from All India Medical Institute for Medical Sciences who reported experiencing serious emotional and psychological trauma as a result of the reparative therapy conducted on him. The response of a representative of NHRC to demands for justice was ‘homosexuality is an offence under IPC, isn’t it?’ This illustrates how Section 377 is used to deny legal recourse to non-heterosexual people, even in cases of human rights violations.

Lastly, the memorandum highlights the fact that Section 377 legitimises the social stigma and biases that make people of marginalized sexualities reluctant to access counselling and health care services, critical to the reduction and prevention of HIV. The fear and risk of attracting criminal liability, social discrimination and stigma leads to a lack of safe, social spaces for those belonging to marginalized sexualities – often leading to unsafe sexual practices. Activities related to reducing the risk of HIV infection such as condom promotion/distribution among these communities have been construed as abetting and aiding a criminal act under Section 377.

The memorandum urges the government to reconsider its response to the Writ Petition and take cognisance of the human rights violations faced by all those marginalized on the basis of their sexuality. “The people of India have voted in a new era of change, inherent in which is a strong rejection of the politics of hatred and narrow fundamentalist assertions of what it means to be Indian. We hope that the new leadership will stand up to the expectations of the people and demonstrate, in no uncertain terms, its stated commitment to protecting the rights of marginalized sections of society, not least those whose very existence has been criminalized by the law”, say the signatories of the memorandum.

[Voices Against 377: Amnesty International India, Talking about Reproductive and Sexual Health Issues (TARSHI), Creating Resources for Empowerment and Action (CREA), PRISM – A Sexuality Rights Advocacy Group, Nirantar -- Resource Centre for Gender and Education, Sama – Resource Centre for Women and Health, Jagori – Women’s Training and Documentation Resource Centre, Partners for Law in Development (PLD), Saheli Women’s Resource Centre, Anjuman JNU Queer Students Collective, Nigah Media Collective, Haq Centre for Child Rights, Breakthrough – Media and Human Rights organisation.]