No harm, No Foul: A case against Section 377
Alex MacDougall looks at the criminalization of homosexuality and the impact of Section 377 on the HIV/AIDS crisis in India.
With each passing decade achievements mount in recognition and enforcement of basic human rights worldwide. Governments around the world rarely miss an opportunity to assert their firm and dedicated stance towards ensuring basic rights to their citizens, and convene regularly on an international stage to discuss pressing human rights issues. Surprisingly or not, many governments fail to follow-through on their espoused convictions despite this apparent commitment to basic rights and freedoms. The enduring criminalization of homosexuality is a prime example. The criminalization of homosexuality has become an increasingly salient issue in India in recent years, as human rights and HIV/AIDS activists, notable public figures, and NGOS promoting the rights of the gay, lesbian and transgender community, have rallied together to demand that the constitutional rights to personal liberty and equality of individuals engaging in consensual same-sex relations be observed.
At the pinnacle of the controversy surrounding the criminalization of homosexuality is Section 377 of the Indian Penal Code (IPC). This section, which was influenced by prevalent Judeo-Christian beliefs and Victorian campaigns advocating sexual prudence, was drafted by the British Lord Macaulay and enacted in 1860. The colonial era law criminalizes any "carnal intercourse against the order of nature with man, woman or animal." If prosecuted under 377, one could face up to 10 years in prison. While there is no elaboration or clarification as to what exactly qualifies as intercourse "against the order of nature," this section has historically been interpreted to mean sexual relations between two men. Section 377 is also the law under which bestiality and paedophilia are prosecuted; according to 377 it is just as much a criminal act for a man to have consensual sex with another adult male, as it is for him to sexually assault a child or animal.
In 2001, Naz Foundation (India) Trust filed a Public Interest Litigation suit in the Delhi High Court to challenge Section 377, identifying the law as unconstitutional and seeking to remove sexual acts occurring in private between consenting adults from its ambit. Two counter-petitions were subsequently filed opposing the writ petition filed by the Naz Foundation, one by the Joint Action Council Kannur (JACK), and the second by the Government of India. The High Court dismissed the original petition and a subsequent review in 2004.
A gay rights activist and legal consultant for the Naz Foundation, quoted from the government’s counter-affidavit in a speech at a UN International Panel Discussion which stated, “…deletion of the said section can well open the flood gates of delinquent behaviour and be misconstrued as providing unbridled license for the same...” and, "…law does not run separately from society. It only reflects the perception of the society."
By the government's own admission same-sex intercourse is still considered a criminal behaviour, and further justifies this narrow-minded view by citing generalized public opinion. Let us not forget there was a time in the not so distant past where the "perception of society" was that women should not have the right to vote, that children of lower castes were not deserving of public schooling, and that physically assaulting his wife was the right of every man. It is up to the government to set a precedent for equality, and not just reflect the entrenched views of a portion of society.
The government’s counter-affidavit also refers to reports they claim to be in support of Section 377 from the Indian Law Commission, regardless of the fact that the 172nd report from the Commission recommended that Section 377 be repealed, and that rape laws be amended to incorporate gender neutral language and special provisions for child sexual abuse.
On 3 February 2006 the Naz Foundation filed an appeal before the Supreme Court against the Delhi High Court's second order of dismissal. The High Court was subsequently directed by the Supreme Court to hear the case and decide on its merits. Following an application by the petitioners to expedite the hearing, the Delhi High Court recently scheduled the final hearing, despite the respondent’s attempts to delay this case further. After seven years of ongoing legal turmoil, the final hearing before the High Court is scheduled to commence on 19 May 2008.
After the case was remanded back to the Delhi High Court, the National AIDS Control Organisation (NACO) filed a reply affidavit to the petition, supporting the decriminalization of sex between consenting same-sex adults. In their reply, NACO states the importance of reaching men who have sex with men (MSM) through HIV/AIDS prevention efforts, in order to provide them with the tools and information necessary to protect them from HIV infection. They also reiterated claims by Naz Foundation that harassment from law enforcement officials leads MSM to engage in unsafe practices and drives this population underground, which impedes NACO’s ability to reach this vulnerable group.
The original writ petition filed by Naz Foundation presents the key constitutional issues raised by Section 377, namely that this statute violates fundamental rights to life, liberty, equality and other personal freedoms enshrined in the Constitution. Article 21 of the Constitution guarantees the right of every citizen to life and personal liberty. Any law which facilitates the deprivation of life and liberty is in itself contradictory of Article 21.
As previously stated by NACO, Section 377 impedes the scope and efficacy of HIV/AIDS prevention work, contravening MSM’s right to health, an essential component of the right to life. Additionally, a person’s sexual orientation is an important aspect of their identity, and appeals to individual rights across the board, including the right to life. The consensual, intimate behaviours a person consequently engages in are an expression of this right, which is directly infringed upon when these behaviours are criminalized.
Section 377 forsakes individuals the option to exercise autonomy in choosing for themselves the private and consensual sexual activities they engage in, which is an overt denial of the constitutional right to personal liberty.
The right of citizens to speak freely about their sexual preferences, to form or participate in groups related to same-sex issues and to peaceably assemble in public places is protected under Article 19 of the Constitution. However, all of the former have lead MSM or affiliated groups and individuals to be harassed under the pretence of Section 377.
Section 377 clearly imposes upon individuals’ right to be free from discrimination. According to Article 15 of the Constitution, discrimination is legally prohibited on the basis of religion, race, caste, sex and place of birth. While sexual orientation is not put forth as a category on the basis of which discrimination is prohibited, it is argued that MSM face sex-based discrimination as a result of Section 377. Section 377 criminalizes the sexual relationship between two people of the same sex, thereby ascribing traditional sexual roles to both men and women, and punishing individuals who deviate from these roles. MSM experience discrimination under the law for not adhering to traditional sexual gender norms, which is an affront on the right to be free from sex-based discrimination.
Article 14 entitles all people to equality before the law and equal protection under it. Section 377 is incompatible with Article 14, as it renders individuals unequal before the law based on sexual preferences. It violates the guarantee of equal protection under the law put forth by Article 14. This article has traditionally facilitated vulnerable minority groups in legally redressing episodes of discrimination, however Section 377 prohibits MSM from coming forward and claiming their constitutional rights.
Even constitutional rights cannot be guaranteed as absolutes. The state can put restrictions on the application of these fundamental rights if it can demonstrate fairness of action, reasonableness and freedom from arbitrariness. However the Indian government has yet to satisfactorily fulfill this requirement in its dismissal of the Naz Foundation’s petition to repeal Section 377.
Despite the fact that few men have been prosecuted under Section 377 for engaging in consensual sex, the very existence of this statute serves as a barrier for HIV/AIDS initiatives to legitimately reach MSM. When homosexual activity is criminalized by the state, a very clear message is sent to society and its institutions, tacitly condoning homophobic attitudes and actions, making same-sex attracted individuals and affiliated organizations vulnerable to violence and persecution.
Police officers in India have routinely used the threat of 377 to blackmail, exhort funds from, and sexually and physically harass MSM. Few options for legal recourse exist for MSM to obtain justice in cases of sexual assault or abuse of power by law enforcement officials. The criminalization of same-sex relations engulfs MSM in a cloud of shame and alienation. It reduces the likelihood of reporting male rape, and discourages men with sexually related diseases from seeking treatment.
The detrimental impact of Section 377 on the HIV/AIDS crisis in India cannot be understated. The stigma and fear of persecution which prevents MSM from
seeking treatment or prevention materials for sexually transmitted infections (STIs), makes it difficult for HIV/AIDS organizations to reach out to this marginalized group. Even a basic prevention strategy like making condoms readily available in prisons, where the HIV infection rate is significantly higher than in the general population, has been repeatedly rejected by prison authorities on the grounds of Section 377. It is not only the health of MSM that is compromised due to Section 377; many MSM in India have female partners and risk exposing them to HIV and other sexually transmitted infections if they fear coming forward for screening.
Not only have HIV/AIDS organizations and activists been hampered in their efforts, but they have also endured violent and discriminatory encounters with law enforcement officers. In Lucknow on July 7, 2001, following a report of sexual assault, the police raided and sealed the offices of Naz Foundation and the Bharosa Trust, two local HIV/AIDS organizations, and arrested several staff members. Materials were seized from the offices and those arrested were beaten by police officers. They were charged under 377, in addition to sections 292 (sale of obscene materials), 120b (criminal conspiracy), and 109 (abetment) of the IPC. Charges were also laid under the Copyright Act and the Indecent Representation of Women Act. Applications for bail were twice rejected, first by chief judicial magistrate, who claimed “the work of the accused is like a curse on society," and then by the district judge. Bail was finally granted to all four of the accused over 40 days after the arrests, following an appeal in the Lucknow High Court by the Lawyer's Collective HIV/AIDS Unit. This state-sponsored oppression only serves to impede the efforts of HIV/AIDS prevention initiatives, and publicly legitimize homophobia.
Proponents of leaving Section 377 intact claim that if the law is repealed, the prosecution of paedophiles will be hindered. In actuality, children would most benefit from the drafting of a separate comprehensive law specifically addressing child abuse. Another option is to amend 377 to exclude consensual relations from its scope, leaving it available to prosecute sexual abuse against children. The time is now for the Indian government to be a leader and not a follower in the struggle for equality. The belief that criminalizing gay sex acts is essential to eliminating "unnaturalness" from society, can only lead to discrimination and intolerance. Section 377 is simply a remnant of colonial legacy, based on Victorian values that India need not embrace.
Alex MacDougall, a graduate of McGill University, is currently an intern at the Lawyers Collective HIV/AIDS Unit