Blame the Law: Section 377 Drives Gays
Into A Twilight Zone
SHALEEN RAKESH
Times of India - Aug 31, 2004
It takes a tragedy to make people sit up and take notice. Therefore, in the
context of Pushkin Chandra's recent murder, it becomes
imperative to examine the socio-legal situation regarding homosexuality in
India.
It's not easy to be gay in our country. There is immense social stigma attached
to it. Families and friends assume that everyone is
heterosexual. The abuse starts the moment a young gay person realises his
desires. He is suddenly confronted with his 'otherness'. He fails to see any
recognition for his feelings, his instincts and his emotions. On the other hand,
everything around him says he isn't
normal, an aberration, someone who went wrong along the way.
It's hard to maintain your self-esteem in the face of such forceful opposition.
Many gay men succumb to this rampant homophobia. Some become depressive, fragile
and diffident. Others make choices to please others, they get married and
repress their real desires for a lifetime. Very few are able to stand up to the
onslaught and try living on their own terms. In a culture, which cannot support
long-term stable same sex relationships, many of these men live a life in which
they struggle to steal moments to love each other.
Now, consider this: Section 377 of the Indian Penal Code makes it a criminal act for two people of the same sex to love each other by sharing physical intimacy to express that love. A portion of the Section 377 defines "unnatural offences" as "whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment of either description for a term which may extend up to 10 years and shall be liable to be fined". The term "unnatural offences" has been interpreted to include sodomy and oral sex.
The section was put into the Indian Penal Code by the British way back in the 1868. They introduced this section based on Christian morality in all their colonies. The section has since been repealed in most countries including Britain itself. India, on the other hand, continues to hang on to this ridiculous and outdated colonial legacy. What does this section mean for Indian gay people? To begin with, it makes criminals out of innocent men and boys. It hits at their self-esteem, erodes their self-confidence and mocks their personal identity. Section 377 is enough to keep them in the closet.
In addition to such gross violation of human rights, Section 377 creates an environment which makes gay men extremely vulnerable to HIV. There are several reasons for this. The section prevents the government from using our education materials, which educate people on HIV transmission through homosexual behaviour. Lack of information and education means several myths and misconceptions persist. One of the biggest myths is that HIV is only transmitted through vaginal sex and that anal sex is safe.
Lack of privacy is a big issue for most gay men. Section 377 prevents the constitution of legitimate spaces (like marriage), which gives same-sex sexual activity a legal sanction. This means many gay men have sex in public places where space and time are constraints and it's difficult to negotiate safer sex. There are 50 million men who have sex with men (MSM), the community is both stigmatised and denied relevant safer sex information.
A New Delhi based NGO that works with MSM and gay men, on December 7, 2001 moved
the Delhi high court challenging the constitutional validity of Section 377
(unnatural offences) of the Indian Penal Code. The matter is still sub-judice.
The writ petition
argues: "Section 377 creates an arbitrary and unreasonable classification
between natural (penile-vaginal) and unnatural (penile-non-vaginal) sexual acts that is violative of Article 14's guarantee of equal
protection before and under the law. Socio-scientific
evidence also suggests that the prohibited acts are indeed not 'unnatural'. This
classification has no rationale as it is culturally accepted that sex is not
engaged in for procreation alone. Socio-scientific evidence has also suggested
that the prohibited acts
are indeed not 'unnatural'."
HIV/AIDS outreach workers are constantly harassed in the field by the police
constables who invoke and misuse Section 377 to prevent HIV intervention
efforts. The moment a constable on beat, for instance, senses that somebody is
gay, he feels at liberty to charge him under Section 377. This is preposterous
because the law criminalises the 'act' of sodomy, not a person's sexual
orientation. However, it is an effective ploy to extort money out of innocent
people who are too afraid to protest. This is despite the fact that many gay men
know they're on the right side of the law. But the fear of someone disclosing
their sexual orientation to their family or at their workplace deters them from
raising their voice.
What makes things worse is that there is no legal or social recourse to bring to
book the perpetrators of criminal activity against gay
men. Section 377 is essentially an anti-sodomy law, a sexual act that is known
to be practised as well by straight people as by gay men. Yet nobody ever
questions what straight society does behind closed doors. So who is this archaic
law trying to protect, for what, and why?
(The author is a gay rights activist.)
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