In the Delhi High Court this month the final stages of hearings into India’s anti-sodomy laws will be held. The laws have been targeted by human rights groups and HIV/AIDS organisations for their victimisation of GLBT people and sex worker populations. The systematic discrimination supported by the laws are contributing to poorer access to treatment and prevention of HIV/AIDS, fuelling the epidemic amongst these vulnerable sectors of the population.
The current Indian penal code contains remnants of British Colonial Law enacted in the 1860’s, including Section 377, that criminalises ‘unnatural’ sex acts.
The International Gay and Lesbian Human Rights Commission (IGLHRC) identifies the law as penalising ‘voluntary carnal intercourse against the order of nature with any man, woman, or animal.’ This could be and is interpreted as the criminalisation of same-sex sexual activity, as well as oral or anal sex even between consenting adults. As the laws can be applied arbitrarily, are non-bailable and punishment can lead from ten years to life in prison, and/or a fine, the law is particularly open to abuse.
According to the Lawyer’s Collective reports posted on the IGLHRC site, The Naz Foundation of India, a NGO HIV/AIDS first brought consideration of Section 377 before the courts in 2003. The petition to amend section 377 was initially rejected by Delhi’s High Court, however, the matter was sent back to the High Court in 2006 by the Supreme Court, who advised that the matter should be considered rather than summarily dismissed. It came up for initial discussion before the courts in May of this year.
In the hearings held in May, counsel for the petitioners, Arnand Grover from the Lawyers Collective, submitted to the High Court that Courts have interpreted the meaning of ‘unnatural’ acts to include a wide variety of non-procreative sex acts, and that while consent has in some cases been used as a mitigating defence, this was not necessarily the case.
The report continued on to detail the resumed hearings in September this year, at which the court heard from Voices against 377 – a human rights coalition who appeared in support of the Naz Foundation petition. At this hearing Shyam Divan, representing the petitioners, outlined the everyday impact of section 377 on India’s gay, trans and sex worker communities. According to the Lawyer’s Collective report, Divan told the court that section 377 was a ‘direct violation of the identity, dignity and freedom of the individual, and that it fostered widespread violence, including the rape and torture of LGBT persons at the hands of police and society.’
In a presentation to the 5th Asian Law Institute conference in May of this year, Professor Douglas Sanders identified that the real impact of section 377 is not in the cases that are brought to prosecution under the legislation, but in ‘the routine and continuous violence against sexual minorities by the police, the medical establishment and the state.’
Section 377 is increasingly officially recognised as not only a violation of the human rights, it plays a significant role in sustaining the HIV epidemic in vulnerable minorities in India. Evidence presented in the September hearing of the High Court by the Indian government, identified India’s HIV prevalence is 8% amongst the MSM population as opposed to 1% of the general population. Additionally, only 6% of MSM receive interventions from the National AIDS Control Organisation, meaning it is a population at significant risk from HIV.
According to UNAIDS, India’s Union Minister for Health and Family Welfare, Dr Anbumani Ramadoss, addressed the need for the abolition of section 377 at the 17th International Conference on HIV/AIDS held in Mexico City in August this year. He said ‘Structural discrimination against those who are vulnerable to HIV such as sex workers and MSM must be removed if our prevention, care and treatment programmes are to succeed.’
The petition to repeal Section 377 remains politically sensitive. Although the Health Minister supports the repeal on the basis that decriminalisation is important in preventing the spread of HIV, PinkNews.com reports that the Home Ministry identifies gay sex as the product of ‘a peverse mind’, a difference of opinion between two ministries that has led to Indian Prime Minster, Manmohan Singh ordering the two Ministers to sort out their differences ahead of the court’s verdict later this month.
