Nearly two years ago, we posted on a court case involving Section 377, India’s notorious law criminalizing homosexuality. A case had been filed in the Delhi High Court (in 2001!) by the Naz Foundation, and the High Court had initially turned down the case. Later, the Indian Supreme Court directed the Delhi High Court to consider the case after all.
Last week, the case finally came up for a hearing, and the proceedings are described here. The chief lawyer for the Naz Foundation, Anand Grover seemed to hit all the right points: the law is a colonial relic; the law is vague to the point of absurdity, opening itself to arbitrary interpretation and arrest of presumed homosexuals; the law insults the dignity of homosexuals; and the law runs counter to the interests of public health. All of these are strong arguments (read the article for the nitty-gritties, including a rather fine distinction made between “carnal intercourse” and “sexual intercourse”).
The government’s confused defense amused one of judges hearing the case, Justice Sikri:
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blockquote>Counsel for the Union of India submitted that her client had filed two affidavits, one by the National Aids Control Organization (“NACOâ€) under the Ministry of Health and the other by the Ministry of Home Affairs. She admitted that NACO’s reply is supportive of the Petitioner. To this, Justice Sikri remarked that if that is the Union’s position, then why did it not amend the law itself?
The Counsel for the Union of India replied that the Ministry of Home Affairs has opposed the petition but that its counter was filed in 2003 prior to NACO’s reply (in 2006). She admitted that the client (i.e the Ministry of Home Affairs) had not given any new or additional instructions. It therefore appears that the Ministry of Home Affairs stands by its earlier stand of contesting the petition.
Amused by the fact that the Union was divided in its opinion, Justice Sikri remarked “It (homosexuality) is not a health hazard but is affecting the homeâ€. (link)
In short, the government’s initial response (from the Ministry of Home Affairs) on Section 377 contradicts the National AIDS Control Organization’s response (the latter group actually agrees with the Naz Foundation). The government here can’t coordinate its own defense, making any attempt to actually defend the law seem a little schizophrenic.
I don’t think homosexuality is a crime in India, the homosexual act is a crime.
In India, you become a criminal if you have sex outside wedlock (irrespective of your sexual orientation).
I don’t think homosexuality is a crime in India, the homosexual act is a crime.
Yes, I’m well aware of this. Surely you would agree that banning the act while not banning the “identity” is kind of insulting. It would be a little like telling you, “hey, you’re allowed to be a carnivore, but if I catch you eating chicken, you get ten years in prison!”
Moreover, the police are sometimes unclear as to what the law is, and often arrest people (i.e., hijras) separate from any specific sex act. One such case was cited by the lawyer working for Naz Foundation in the hearing in Delhi this past week.
Hopefully some positive influence from Nepal will rub off on India when it comes to gay rights.
India’s fumbling, stuttering, hands-in-the-pockets,rock-kicking, awkward legal system at it’s finest.
I never understood why societies are so worried about homosexuality when there are almost always much greater things to worry about (especially in Indian).
6 · yuck said
That’s a bit rude innit? I mean, these Indian government laws are admittedly ancient…but calling them perverts?
swish
I think Anand Grover made a mistake by not following up the definition of ‘unnatural acts’. If you ask an animal agriculturist, anthropologist, or naturalist, they will tell you that homosexual behaviour is repeatedly found in nature…the higher the mammal, the higher are the chances of there being homosexual acts in a given group.
Too bad they missed this approach altogether.
Wow Inv, it’s easy to sit back and judge from thousands of miles away, is it not?
This is according to you. Perhaps, homosexuality is the most important thing for this. If something else is important for you, then go ahead and take it up and work for it.
Thanks for posting, amardeep and big kudos to the Naz Foundation. It’s about freakin’ time. Hopefully the lack of defense (partly due lack of coordination, but I suspect also because the law is indefensible, imo) will lead to the law being overturned.
It’s great to see the case showcased on Sepia, sometimes even South Asian-Americans turn a blind eye on queer issues. As for the case itself, the Delhi High Court has postponed the trial until July. It seems that the justices have a well-opportune court vacation and will be hear the remainder of the case six weeks later.
My issue with IPC377 is that while countries like Egypt, Iran, and even Pakistan criminalize homosexuality, they have a concrete basis to support their conviction (most often via the Sharia). In the case of India, the criminalization of homosexuality is an artifact of British colonialism. Now, I understand the complexities colonialism induced on Indian culture; however it blows my mind how people can cling on to IPC377 and spew rubbish of how homosexuality is a Western consequence. If anything, the heterosexism permeating the subcontinent is the real Western disease.
In a nation that values (or at least says it values) diversity, why should sexual diversity be any different?
If we haven’t seen any good arguments for IPC377, why is it still there? Fear of the unknown? Unwillingness to change? Here’s what I’m getting at: In the U.S. the anti-gay argument is largely religious which (as Anu mentioned) is the case for other countries as well albeit different faiths. From what I’ve seen, Hindu text/teachings aren’t explicit on queer identities, either approving or disapproving. Are there Hindu/other religious groups denouncing homosexuality? Is it a mentality carried over from colonialism? Certainly I’m not saying all of India is homophobic but where does the fear stem from? I would love a little more context for the glbtq issues in India.
In any case, love is love and I’m glad I’m not criminalized in los angeles.
I’m a little less willing to forgive the other societies you mention, Anu. Religious reasons don’t excuse discrimination, whether it’s with regard to sexual orientation, gender, race, religious affiliation, or whatever. I take your point, and I’m on your side, but I think sharia is right up there with Intelligent Design as an example of how willfully and forcefully stupid our species can be.
But I suppose I’d stand in stark contrast to commenters who seem to think that because they think homosexuality is “gross,” that those people who practice it should not be protected by law (and Amardeep’s point is well-taken).
I’m particularly amused by the “defense” of this law. Tevadi, are you implying that the government’s self-contradictory defense is not bumbling, awkward, and…well…silly? I could be sitting courtside or 15,000 miles away–what’s the difference? Distance doesn’t prevent me from understanding when something’s stupid. I don’t need to go to Gitmo to understand that opening a prison in Cuba (!) and sending “prisoners of war” there without habeas corpus or many other forms of due process is nuts. What would be the ameliorating circumstances that would make all this easier to comprehend that I’d get with ringside seats?
This is indeed strange, being that Indian culture in itself encourages, you could say, to some level, homosexual behaviour. In fact, at one particular boarding school there, parents and teachers preferred that teenage boys sexually experiment with one another rather than with girls. They all asserted it is a stage that will pass when they grow up and marry. The fact that there are homophobic elements of Indian society really surprises me. I see the culture being more (pre-marriage) hetero-phobic than anything else.
Salil:
Indeed, although fairly enough there was only one commenter who thought in that fashion. Why should stupid, outdated religious beliefs be given more weight than basic human rights? Queer rights for South Asians are definitely an underrepresented issue in the diaspora.
Btw, ignore Devadevi, who is clearly Pardesi Gori. Although, I hate to admit, in this post she is not entirely in the wrong. My grandfather, himself having spent a number of years in boarding school, did mention stories of sexual experimentation between boys in that enviroment. Though, I doubt it was encouraged by parents.
No, parents do not encourage their kids to experiment sexually with other kids, either same or opposite gender. What I was getting at is, the separation between the genders in India leaves almost no other outlet for sexual release than same gender, and some parents and other elders see this as a normal (though not particularly approved of) part of growing up.
When you have a culture that does not encouraging dating or pre-marital relatonships and at the same time people are remaining single for much longer periods of time than previous generations, well, 2 + 2 = 4
Singapore has the exact same law- also s. 377, in fact!
There was a proposal from a Nominated MP (someone not voted in through an election, but who applies to be an NMP or is put forward by a civic society group, and after some interviews, is approved by the government) to repeal it, after he collected signatures for a petition.
This led to a HUGE hue and cry- both sides were vociferous on and offline. Finally, the govt refused to remove s.377. Their thinking, in short, is that s377 is not used to discriminate against gays (which doesn’t really happen AFAIK), but removing it would cause unnecessary tension among the conservative elements of Singapore’s society. Yet another example of Singapore’s odd way of working out things- what the ruling party calls being “pragmatic” 🙂
Here’s a link with more on the affair: http://www.repeal377a.com/
From my personal experience, the taboo is more of a societal thing, in the vein of “what would people say? How can I show may face to the neighbors/friends/relatives ….” yada yada yada and so on and so forth. There is also the very handy “you’re a woman, over 30 and unmarried. All your cousins are getting married. How will you ever have children?”
Here’s my observation, for what it’s worth: we grow up in a society and times where hijras/chakkas are a punchline, a joke, perpetuated by a constant barrage of negative stereotypes in movies/media. People don’t even blink at using those terms as an abuse, and political correctness is a joke. What parent wants to see their child as the butt of those jokes, or for that matter, have the joke be reflected on them? Plenty of people still go ballistic at the thought of their child bucking the trend and marrying out of the caste/community/religion. Pushing the gender norm is practically a nuclear assault, as far as they are concerned.
I’ve been on the straight side of the divide, back when I was oblivious to my true sexuality, and didn’t think for even a second how those jokes would affect the people it is leveled at. You don’t even think of them as people. And then I realized I was one of “them”. It’s a very different picture from where I stand now.
In a place like India, having a strong judiciary helps, to ram through the changes that are needed that a stubborn electorate and political interests aren’t willing to bend on (case in point: the CNG fueling of public transport in Delhi). So it’s a good thing to see the Supreme Court taking on this. But that alone won’t be enough. Visibility matters. Being out matters. People won’t change their minds until they see that we’re just normal folks, like everyone else. Striking down this ridiculous law would be a good step in helping people have the courage to come out and have the freedom to be themselves.
In Hitler’s Germany, they experimented on other children. And many parents and elders saw this as normal.
Will you let this go on in modern India, people? Will you? Make 2+2=5 in a new Shining India!
I assume said “homosexual act” can also be perfomed between adults of different genders? Does the state plan to prosecute these instances too? If so, how?
Although PDAs are accepted way more between same gendered friends than opposite gender friends or couples in India, and although, due to the reasons I gave above, homosexual behaviour is rampant in Indian society, such persons do not classify themselves as “gay” or “homosexual”. They are doing it as a biological release until they marry and can do so within a relationship sanctioned by family, community and society.
This refers to the young and unmarried “straight” people who fool around with the same gender. Then of course you have people in India who are in fact, actually gay and say so (or sometimes don’t).
There was an interesting article written by an American gay men about his professional stint in India about navigating the maze. He explained his confusion about seeing so much PDAs expressed between men in that country and yet he could not assume that all or even most of them behaving in manners that would clearly label them “gay” back in his homeland, indicated their sexual preference at all.
Anyway, eventually he figured out a way to figure out who was gay and who was not, much to his own benefit and happiness.
Things are not so black and white.
PDAs are yesterday’s news, today everybody wants an iPhone. And that is certainly not black and white.
i think devadevi is india’s joe massad.
Actually I am a hetero woman who does, in fact, have a penchant for Arabian men, well, their looks anyway.
In India, unfamiliarity breeds contempt. Until recently, most middle class folks all money making businessmen as rogues. But once the population (or a substantial part of it) started enjoying the fruits of affluence all apersions about “those rich people” have evaporated. The money has become part of the scenery (so to speak). In the case of homosexuality, it will take a little more effort to flesh out the scenery. This will mean an activist IIT professor, or a famous cancer doctor , or a national cricketer coming out – somebody the middle class see as a role model. This will trump any changes in the law. Going the “lets out some actors” or “have more gay characters on TV” route also will be ineffective because entertainers are still seen as inhabiting a universe whose citizenship is not governed by any entrance exams or inter-college sports.
Why are you obsessed with India? Don’t you have a country of your own? For majority of Indians you don’t even exist.
Based on what I read in the article and all the explanation given for sexual intercourse and carnal intercourse, i guess lesbian sex would not be illegal under s377. Correct me if I am wrong in my interpretation.
What a waste of space this blog post is. A totally irrelevant issue.
You have half the population starving, farmer suicides, insane inflation, the rupee losing 1% every day against the USD. The India story is unraveling as we speak.
And, on Sepia we waste our time exchanging barbs with PG and her avatars on a topic that no one gives a damn about.
I guess from a strict utilitarian perspective, it would not be at the very top of the list of issues, fair enough. But I think you’re being way too strong to label it “totally irrelevant.” This is a very harsh law that harms people’s lives (even if it is not always rigorously enforced), and (at least as far as I can see (and, heck, I’m a right-wing pro-Jindal guy!)) has no positive justification.
I’ve always found that introducing some gaye definitely helps all kinds of intercourse.
Oh, and DesiDawg, thanks for your productive contribution that instantly fed farmers, and made inflation sane again.
What a waste of space this blog post is. A totally irrelevant issue.
Sorry, human rights is never irrelevant.
Anyway, if we spent all our time covering farmer suicides (which we have covered, by the way), people like you would likely come after us for “being anti-Indian” or for “showing a poor image of the country like Somini Sengupta.” We’ll be attacked by someone no matter what we talk about, so we talk about what interests us.
15 · Meena said
fair enough. however, i’m pretty sure boarding school buggery is not unique to india. english boarding schools, for instance, have always been associated with it. and i doubt sexual harassment of younger students was encouraged even in that situation by the ‘elders,’ but i’m sure many thought it was part of the normal trajectory of growing up.
2 · Libu said
Absolutely not! What is criminal in India is any sexual act that goes ‘against the order of nature’. That would pretty much include any kind of sex that does not involve the penis penetrating the vagina (PIV sex).
PIV sex between any man and woman is NOT illegal.
Any other kind of sex is technically illegal irrespective of who is having it.
28 · DesiDawg said
Irrelevant? How nice for you that you can declare what is or isn’t relevant. I’m sure you’re amazing, awesomely righteous abilities allows you to magically stop the unraveling of India as you perceive it.
For me, and my fellow GLBT DBDs, this is never an irrelevant issue. We don’t just have to consider the blatantly unfair law, and its use by the authorities, we also have to face the hostility of family, friends and society. A few rare folks are lucky enough to have supportive, understanding families. Most aren’t. We live in a different country, and face further alienation from the people that we love back home and discouragement from going back. I’m one of the lucky few, coming from a liberal and progressive family. But that doesn’t mean I’ll be seeing my mom at PFLAG anytime soon. They’d prefer to describe me as eccentric and unmarried, rather than say I was gay. Going back to India is not really much of a choice.
No, not unique to India. Nobody made that argument. But it is usually a product of gender segregated societies, boarding schools in UK would certainly fall in that category. But outside of boarding school, the rest of UK society is not gender segragated anywhere near the extent that Indian society is.
@33
You are mistaken since Adultery is a crime in India. Here is a link that explains the position on adultery.
35 · DeviDeva said
your assertion is that if sexual experimentation is going on in india, why homophobia? and i’m pointing out that sexual experimentation among kids happens in many societies (even if there is no gender-based segregation, same-sex experimentation is well-documented, although it may be reduced in such societies), and it still does not mean that homophobia is erased. also, i think indian society encourages homosexual behavior in boarding schools seems false. it’s not encouragement, it’s toleration, given that the establishment knows that upon attaining maturity and adulthood, these kids will surely give up ‘deviant’ behavior. “they’ll grow out of it.” so same-sexual experimentation is tolerated because it will end, it’s just something that kids will do in a particular environment. similarly, several men who have sex with men in prison too don’t think of themselves as gay, because they that once incarceration ends, they will be back to ‘normal’ heterosexual behavior.
i do not deny that gender-based segregation is maintained at unhealthy levels in india. at the same, time your argument is not entirely convincing. if a society has a high-level of documented homosexual behavior, then, it won’t be homophobic? in that case, all the smiling happy gay families in SF should have cured middle-america of its homophobia long ago.
The trick to advancing gay rights in India is to take advantage of the absence of institutionalized homophobia as exists in US. Most people, because they have had no conditoning about this topic, will hopefully produce an informed opinion.
Well portmanteau, I guess you are right. When even heterosexual relationships have to go underground in India, then what to speak of homosexual relationships.
34 · lostingeekdom said
For me, and my fellow GLBT DBDs, this is never an irrelevant issue.
This law is not just a technicality– it sets a social standard. Getting rid of this law would be a loud statement that it’s not ok to discriminate just because of who somebody chooses to love. period. GLBT ABDs feel it too, through the pipeline because our parents grew up learning it was ok to not accept glbt people. Besides, erasing hate always benefits more than just the community involved.
39 · DeviDeva said
don’t be so cynical DD — loving v. virginia is a relatively recent chapter in american history. and the california supreme court in favor of gay marriage is practically brand new. look how far the states has come recently. perhaps india will be more enlightened soon too? or do you think we Neanderthals are incapable of evolving? pardon me, but is that your prejudice showing?
PS: amita and lostingeekdom — good luck! this is an uphill battle, but i do hope that the political consensus will soon tend to empathy rather than prejudice, especially within the south asian community.
I smoked, but did not inhale.
42 · DevilDeval said
Devil – I’d drop the soap for you.
Tell that to the many sexuality minorities who get beaten, humiliated and harassed by police directly as a result of a poorly-worded, and a weak law. What nonsense. This issue has come to light because of HIV/AIDS and the law’s public health implications, but abuse of 377 has been happening long before that.
One of the justifications for the law is that it is often used to protect children against sexual violence (unnatural act). Since apparently India has no law protecting children? Does anyone know more about this? Does IPC 377 really stand in for child sexual abuse leglislation? Which in itself is a pretty serious reason, to scrap it immediately, and create new laws.
i liked your blog
The psychological dynamics of prison sex and rape are different.
If, when they come out, they enter into relationships with men, then they would be gay.
Or maybe it’s that everyone is bisexual by nature but nurtured by culture/society not to be and it takes situations like prison and boarding school to bring that out???
42 · DevilDeval said
You can’t look at this in black and white. Just because someone has gay sex does not mean that they are gay. The act itself does not define one’s sexuality. I knew I was gay long before I ever had sex with anyone. There are many psychological, emotional, and cultural aspects that factor into someone being defined as “gay”
47 · nerox2 said
i agree. that was my point.
I get really confused when I read about all these debates. Isn’t there some sort of zeroth law that states justice is for ALL humans, regardless of race,gender,orientation,nationality and any other factor that can discriminate them?
If so, shouldnt this override all these laws?
Also, because of this post I found out that the Indian law controls the way we have sex!!! How DO they enforce this stuff? What about the millions of even heterosexual, married couples who have “carnal” sex?? This is insane!!
I’m doing a paper on gay rights in India. Can any give any information?