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print versionThe Union home and health ministries should resolve their dispute over homosexuality and decriminalize it urgently, writes Sankar Sen
The Union ministries of health and home are at loggerheads over decriminalizing homosexuality. The health ministry wants Section 377 of the Indian Penal Code, which criminalizes homosexuality, to be deleted on the grounds that it is impeding the country’s fight against HIV/AIDS. The home ministry wants the penal provisions to be retained because it believes that their deletion would encourage delinquent behaviour. The prime minister has now directed both the home minister and the health minister to discuss the matter and sort out the differences. Section 377 was introduced by Lord Macaulay as a part of the Indian Penal Code in 1860. It punishes “carnal intercourse against the order of nature†with imprisonment of ten years, or life, or a fine. It defines unnatural offences as voluntary “carnal intercourse against the order of nature with any man, woman or animal†.
Ironically, Section 377 of the IPC replaces a tolerant Indian attitude towards homosexuality with a highly oppressive one. There is nothing in the Indian scriptures — whether Hindu, Muslim, Buddhist or Jain — that refers to homosexuality as taboo. This outdated law violates the fundamental rights of homosexuals, for it brands as sodomy even any consensual sex between adults of the same sex. Section 377, together with its counterparts in Bangladesh, Malaysia, Singapore and other former colonies, was a British imperial law meant for export and not domestic consumption.
Homophobic domestic law in Britain was derived from “gross indecency†amendments at the end of the 19th century, and was used against Oscar Wilde, for instance. However, the law was being unfairly used for blackmailing people, and homosexual behaviour between consenting adults was decriminalized in 1967. In 1981, Jeffery Dudgeon, a shipping clerk in Belfast and a gay rights activist, applied to the European court of human rights, challenging the provisions outlawing homosexuality in Northern Ireland on the grounds that they violated his privacy rights under the European Convention of Human Rights. The court declared the law, insofar as it criminalized homosexual acts between consenting adults in private, as impinging on the right to privacy, but did not consider necessary to deal with the equality challenge.
The South African constitution of 1996 has a unique provision in its bill of rights. Article 9 provides equality before the law and enjoins the State as well as all persons not to discriminate, directly or indirectly, against anyone on several grounds, including sexual orientation. In September 2006, the Hongkong Court of Appeal unanimously invalidated similar provisions in Hong Kong laws that criminalize homosexual practices in private between consenting adults. It is worth recalling that Justice Michel Kirby, one of the distinguished serving judges of the high court of Australia and Justice Edwin Cameron, now a serving judge of the supreme court of South Africa, have publicly acknowledged their homosexuality for many years.
Although prosecutions under Section 377 of the IPC are few, it has been used to harass those with alternative sexual orientations and remains a symbol of intolerance. Naz Foundation, a Delhi-based NGO, has now filed a public interest litigation before the Delhi High Court, seeking, not the repeal of Section 377, but only asking for it to be “read down†in a manner that stops it from being applied to consensual sex between adults. The section can be used for penalizing non-consensual sex and child sex abuse.
The Delhi High Court has pulled up the Union government for terming homosexuality a disease. According to the American Psychological Association, homosexuality is no longer viewed by mental health professionals as a disease or disorder: “Homosexual orientation may well form part of the very fiber of an individual’s personality.â€
Two years ago, prominent citizens of the country came forward to endorse a letter signed by the writer, Vikram Seth, among others, appealing for the decriminalization of homosexuality. The signatories included Amartya Sen, Arundhati Roy, Swami Agnivesh and others. The letter says, “It is surprising that independent India has not been able to rescind the colonial era monstrosity in the shape of Section 377 dating from 1861. That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America. Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization.â€
Today, homosexuality is recognized across the globe, with the Netherlands being the first country to permit same-sex marriage. The UK has also passed legislation recognizing same-sex relationships. But unfortunately in India, as the sociologist Radhika Chopra puts it, “Overt emphasis on reproduction has made same-sex love a taboo.†The need for reform is urgent, because Section 377 poses a threat to public health, impeding programmes for prevention and control of HIV/AIDS. Section 377 also violates human rights standards, including provisions of the Indian Constitution, on equality and non-discrimination. Awareness among the media, the police, the judiciary and the intelligentsia has to be raised regarding social intolerance.
In 1998 , the constitutional court of South Africa unanimously invalidated provisions of several criminal laws that made homosexual conduct punishable between consenting adults as violative of the Equality Clause. This judgment was delivered on an application made by the National Coalition for Gay and Lesbian Equality and the South African human rights commission. The court observed that even though the provisions in South African law against homosexual practices were not enforced, the provisions were invalidated because they reduced homosexuals to the “status of unapprehended felons†, thus entrenching stigma and encouraging discrimination.
