Men who have Sex with Men

In India, as in other parts of the world, men who have sex with men (MSM) are heavily stigmatised and marginalised and subject to discrimination, criminalisation and violence, resulting in acute vulnerability to and the disproportionate impact of HIV/AIDS.

This article highlights the need for a rights-based approach to reducing the vulnerability of MSM to the risk of HIV infection. This is proposed through law reform, which decriminalises sexual activity between men and creates a positive legal environment where rights are guaranteed, allowing MSM to lead wholesome and fulfilling lives. It should be noted that MSM is a specific public health category that does not imply belonging to a community but has emerged from the HIV/AIDS discourse. The Government of India has also recognised this population as disproportionately vulnerable to HIV infection and requiring targeted health interventions.

There have been considerable efforts internationally to decriminalise sodomy and recognise constitutional guarantees against discrimination as applicable to sexual minorities, through judgements or legislative actions. International law has also recognised sexual orientation as a basic right and has particularly highlighted the need for rights of MSM particularly in the context of HIV/AIDS. In India, however, Section 377 of the Indian Penal Code ("IPC") still criminalises sodomy thereby criminalising consensual sex between men. Added to the social stigma related to homosexuality, this criminalisation has driven MSM in India underground denying them access to health and other public services, creating an environment of denial and neglect, and driving them into spaces that encourage furtive, unsafe sexual activity. Additionally many MSM in India are married, increasing the vulnerability of their spouses to HIV infection. This process of marginalisation thus excludes MSM from social structures, which are necessary to maintain physical and mental health and denies them their fundamental rights to equality, life, liberty and health.

S. 377 of the IPC criminalises consensual sexual acts, which are "against the order of nature." This provision imposed on India by the British during the colonial period views sexual intercourse in purely functional terms, i.e., for the purpose of procreation. Any non-procreative sexual activity, be it heterosexual or homosexual, is thus proscribed as unnatural. In practice, however, it is sexual minorities and not heterosexuals who are penalised or threatened with penalties under this law. Moreover, the provision criminalises consensual sexual conduct between adults thereby setting a standard of State interference in personal liberty and privacy that is far-reaching and unprecedented. The U.S. Supreme Court recently found this level of invasion of privacy unacceptable and accordingly struck down a State law that criminalised consensual sexual activity between MSM.

The impact of S. 377 on MSM is severe. This law, combined with local Police Acts and laws on public nuisance, obscenity, abetment and criminal conspiracy, is used by law enforcement agencies and officials to exploit MSM with and threaten, harass, blackmail and perpetrate other forms of violence against MSM. It also perpetuates negative and discriminatory beliefs towards same-sex relations and this misinformation is often used by the Indian medical community to conduct 'aversion therapy' on MSM (involving inhumane methods of electric shock 'treatment'). MSM are thus pushed to the fringes of society where spaces are unavailable to negotiate stable relationships, safe sex and access to information and medical services that should be provided free of discrimination and social censure. As a result MSM vulnerability to HIV/AIDS is greatly increased. It becomes important, therefore, to question the basis of criminalisation of MSM in the face of mounting doubt as to the social, scientific or public health value of such a strategy as a deterrent.

Some of these laws have also been used to disrupt the work of NGOs working in the field of HIV/AIDS e.g. the wrongful arrest of MSM outreach workers in Lucknow in July 2001. Thus legitimate attempts to carry out public health services have also been greatly hindered by S. 377 and the wrongful use of other criminal laws to exploit MSM. Very few viable options exist within law that offer redressal for MSM in cases of abuse of power by law enforcement. These options envisage mechanisms wherein law enforcement representatives, perpetrators of the abuse, are also arbiters within the scheme of redressal. In such situations no real options exist for MSM to seek and obtain justice. Similarly, the legal system does not recognise 'aversion therapy' as violence and abuse.

Although male-to-female transgendered persons are not necessarily or only MSM, they are also impacted by issues that arise in the legal sphere for MSM. They are not recognised by society or law as human beings vested with rights as, in seeking a separate gender identity, they do not fall within normative gender constructions. Accordingly, they are excluded from basic rights of identity and citizenship, including ration cards, passports, property rights, employment, education, medical services etc. Many stand to forfeit their rights if they are to openly express their transgender identities. Moreover, they are exposed to gross and dehumanising degrees of violence in police custody including torture, gang rape and excessive cruelty. This marginalisation makes them acutely vulnerable to HIV/AIDS.

The article argues that, the State's obligation to guarantee the human rights of MSM, mandates immediate law reform. Firstly, Section 377 of the IPC must be repealed and replaced with provisions that criminalise non-consensual sex and child sexual abuse. Secondly, law reform to prevent excesses and harassment against MSM (including transgendered males) by law enforcement officials and society at large and measures of accountability in cases of such excess must be introduced. Along with various guarantees for constitutional and positive legal rights for sexual minorities generally, as long as criminalisation continues, this article calls for safe havens for those working in the field of health and HIV/AIDS and those accessing such services to carry out their activities under recognition and protection of law.