After the heartbreak occassioned by the brutality of Iran's Ahmajenidad regime against student and other youthful protestors, India may be about to embrace homosexual law reform at long last.
Section 377's provisions punish anyone who "voluntarily has carnal intercourse against the order of nature with any man, woman or animal" and criminalises a whole range of sexual acts from mutual masturbation, to fellatio and anal sex. Theoretically, it holds the possibility of a five year prison sentence, although it hasn't been enforced to imprison gay men specifically for the last twenty years or so.
Section 377 was challenged in the High Court in Delhiin 2008. India's Home and Health ministers will now meet with the Justice Minister to discuss its repeal. India's health ministry strongly supports decriminalisation, on the grounds thatrepealing Section 377will assist HIV/AIDS prevention efforts. However, the home ministry maintains that gay sex is the product of "a perverse mind."
Health minister Anbumani Ramadoss has been a particularly strong Cabinet voice for reform. Last year, he called for the repeal of Section 377 in August at the 17th International Conference on AIDS in Mexico City. Jeffrey O'Malley, Director of the United Nations Development Programme on HIV/AIDS, has assisted calls for decriminalisation. He has said that the fight against the disease in India will be helped if decriminalisation occurs. India currently has an estimated 2.5 million HIV+ inhabitants, continue to rise.
"Countries which protect men who have sex with men â€¦ have double the rate of coverage of HIV prevention services, as much as 60%."
However, according to a recent anthology of articles on HIV/AIDS in India, there are some more nuanced problems. Some commentators note that while Section 377 doesn't usually get invoked against elite caste gay men, the same isn't true for lower caste men who have public sex with men, get caught in police raids, and can't afford bribes. As with Britain before it decriminalised gay male sex forty two years ago, there are also ample opportunities for blackmail of higher caste Indian gay men, however. Moreover, Indian HIV stigma and discrimination extends even to its hospitals. Denial of healthcare access, mandatory testing and violation of medical confidentiality are just some of the problems faced within India's healthcare system.
Section 377 isn't the only problem that HIV+ and PLWA Indians face. Indian sex workers have to deal with the Immoral Traffic (Prevention) Act 1956, which is supposed to prevent involuntary human trafficking inside the international sex industry, but which is instead enforced against street sex workers as an anti-soliciting law. Section 110 of the Bombay Police Act 1951 allows police wide jurisdiction and interpretation of its related clause, 'Behaving Indecently'. Male sex workers are subjected to blackmail, and their female counterparts may experience police brutality and rape.
"Traditional" eunuchs (hijras)also find life arduous.Once, theysupported themselves through manti (begging) and badai (wedding blessings), but now have to make do with pun (sex work). They live in gharanas (extended communal networks akin to families), run by haiks or gurus. Andra Pradesh protects hijras from housing discrimination, but New Delhi isn't such a prestigious areafor the 'third sex.' However, their strong community ethos assists prevention education- which is more than can be said for their sex work clientsâ€¦
Another complication is the existence of gender role playing-kothi (bottoms) and panthi (tops) amongst Indian MSMs (men who have sex with men). Kothi are usually queeny in disposition, and collectively identify as 'gay', but are subject to intense social discrimination, and forced into sex work, while panthi have little sense of communal gay identification, are often straight-identified bisexuals, and difficult to contact through HIV outreach. Again, Section 377 doesn't assist matters.
As I've noted above, its repeal would be an excellent beginning- but only a beginning, as India deals with the prospect of a burgeoning HIV/AIDS epidemic.
However, there are some warning clouds on the horizon, as CNN reported. Conservative Indian religious leaders are attacking the law reform proposals:
Religious leaders, however, oppose any suggestion to scrap 377, describing homosexuality as "unnatural."
"We are against calling homosexuality a criminal activity, but we are certainly in principle against legalizing it, because that would mean the state endorsing same-sex relationships," said Babu Joseph, spokesman for the Catholic Bishops' Conference of India.
Homosexuality "violates fundamental norms of a family," he said.
In his remarks, Kamal Faruqui of India's Muslim Personal Law Board outlined what he said was Islam's position on same-sex unions.
"Islam is totally against it. Islam does not allow any unnatural act. No Muslim in the world, let alone India, can ever support it," Faruqui said.
India's top Sikh administration echoed similar opposition.
"Homosexuality is unnatural," said Sukhdev Singh Bhaur, general secretary of the Shiromani Gurdwara Parbandhak Committee, which administers historical Sikh shrines, mainly in Punjab state. "We oppose any proposal to give legitimacy to such acts," Bhaur added.
Recommended book - Negar Akhavi: AIDS Sutra: London: Vintage: 2008