Gay Rights – TOI Editorial July 25, 2006Posted by qmediawatch in English, Section 377, Times of India.
Section 377 of the Indian Penal Code has been under scrutiny for a while. The relevant section, which says that “carnal intercourse against the order of nature with any man, woman or animal” is a punishable offence, is clearly a relic of the past. Indeed, the British introduced it into the criminal code nearly 150 years ago. In 2001, an NGO had filed a petition before Delhi high court against Section 377 on the ground that it violated fundamental rights and that it hindered HIV/AIDS prevention work.
Three years later the high court dismissed the petition, which prompted the NGO to move Supreme Court. In a major boost to the NGO and others who wanted Section 377 amended, the apex court sent back the case to the high court for reconsideration. Now, the challenge to Section 377 has received a further shot in the arm. The National AIDS Control Organisation (NACO), a government body, has submitted an affidavit before the high court supporting the PIL. NACO has cited statistics to show that 8 per cent of the gay population in India is afflicted with HIV/AIDS compared to one per cent of the general population. NACO has also said that Section 377 pushes the issue of AIDS underground. There is undoubtedly a compelling case for amending Section 377 in a country where AIDS is a huge problem and homosexuality is stigmatised. Figures show that many of those afflicted with AIDS belong to groups with poor access to healthcare and information. These groups are particularly susceptible to harassment by the state under provisions such as Section 377.
It needs to be noted, however, that contrary to media reports the PIL against Section 377 does not demand that it be scrapped. The petition asks for a ‘reading down’ of Section 377 to exclude adult and consensual same-sex activity. There is good reason for not wanting to scrap the provision. Due to gaps in our law, Section 377 remains a shield against sexual abuse of children.Amending the IPC alone won’t, of course, change the way gays and HIV/AIDS are viewed in India. This will require a change in Indian society, which can only be brought about by raising awareness about homosexuality. But amending Section 377 would be an important step forward.