Repeal of India’s Sodomy Law January 23, 2009

From Ego magazine:

By Yuvraj Joshi*

Drafted by Lord Macaulay in 1860, Section 377 of the Indian Penal Code—India’s sodomy law— criminalizes ‘carnal intercourse against the order of nature’. The law has been called ‘archaic and brutal,’ ‘the colonial era monstrosity’. In 2000, the Law Commission of India in its 172nd report concluded that it should be repealed. Nevertheless, Section 377 continues to be used to target sexual minorities and violate their rights and well being. There is a debate among human rights advocates and the political and religious right concerning whether legal reforms are necessary to protect sexual minorities. This article surveys the main arguments of that debate. The international human rights community has largely overlooked the plight of sexual minorities in India. However, as this article will illustrate, the abuses that occur under Section 377 are serious violations of the rights of sexual minorities and should draw the attention and concern of state and non-state actors.

Background

On 4 January 2006, the City of Lucknow police arrested four men under Section 377 for allegedly having sex in public. An independent investigation later found that the men were not having sex in public and that the First Incident Report filed by the police was false. The police had arrested one of the men after learning that he was a homosexual and coerced him into providing information concerning the others. The Lucknow incident illustrates that the person who appears likely to commit sodomy is the target of the sodomy law, whether or not he commits the act. Even when the law is not being used to prosecute sexual relations, its existence operates to legitimize practices that violate the rights and well being of sexual minorities. Hijras and kothis have been raped during police investigations involving Section 377. The statute has also been used to intimidate lesbians into ending their relationships. NGOs working with the queer community face the threat of being found culpable for aiding and abetting a crime under Section 377. Section 377 is currently under challenge at the Delhi High Court. On 7 December 2001, the Naz Foundation, an AIDS NGO based in New Delhi, filed a writ petition before the High Court challenging the constitutional validity of Section 377 (Naz Foundation v Govt of N.C.T. of Delhi & Ors [2001]). The petition asks the Court to read down (not repeal) Section 377 by decriminalising private consensual sexual relations, which would allow its continued use against child sexual abuse. Until a separate child sexual abuse law is created, Section 377 remains the only recourse to justice for male victims of child sexual abuse. On 2 September 2004, the High Court dismissed the Naz petition without considering its constitutional challenge. It found ‘no cause of action’, declaring that ‘just for the sake of testing the legislation, a petition cannot be filed’. On 3 February 2006, the Supreme Court of India overruled the dismissal and ordered the High Court to consider the petition based on its merits. As of November 2008, the appeal is once again being heard at the High Court.

Main Positions

The first position theoretical and political position concerning the repeal of the sodomy law is the conservative view that Section 377 should not be repealed or read down. India’s political and religious right has articulated this view in response to calls for overturning Section 377. The conservative position defines homosexuality as ‘not Indian’, equating national identity and citizenship with heteronormativity. The second position is the liberal view that calls for the decriminalisation of particular sexual relations. through an appeal to the legal rights of sexual minorities. At the core of the liberal position stands a distinction between public and private realms. According to this view, private consensual sexual acts should be protected from interference by the state. The conservative and liberal positions represent the two most commonly held views in the mainstream of the sodomy law debate. The third position comes from feminist and queer dissenters and responds to the liberal position. While dissenters strive toward positive social change for gender and sexual minorities, they criticize the reliance on the legal rights discourse and identity-based politics that is required by the liberal approach. There is also a further debate within the queer community concerning whether any legal reform is useful for creating positive social change for sexual minorities. While some maintain that the law is the most powerful means for creating significant change, others contend that legal reform impedes more radical efforts. Finally, I want to present a fourth position. This position calls for the repeal (not reading down) of Section 377 and the simultaneous creation of a law prohibiting the sexual abuse of children. While I am sympathetic toward the concerns raised by the feminist and queer dissenters, their criticisms do not diminish the case for overturning Section 377. It is difficult to envision a safe condition for sexual minorities in India that involves the existence of Section 377 in any form. While there is no doubt, however, that the repeal of the sodomy law by itself cannot relieve the plight of sexual minorities, it will help to create conditions that are conducive to positive social change. Archana Parashar’s claim, made in context of the struggle of Indian women, applies to Section 377 as well: ‘…instead of dismissing law reform as a means of achieving equality… it is more productive to realise the limitations of law and have appropriate expectations that law reform by itself will be insufficient to change society’

Arguments for Repeal

Rights advocates argue that Section 377 violates the fundamental rights of sexual minorities in a number of ways. On one level, Section 377 indirectly leads to rights violations by allowing stigma and discrimination toward sexual minorities. It engenders prejudicial beliefs and legitimizes discriminatory practices by both state and non-state actors. On another level, Section 377 directly requires state actors to violate the legal rights of sexual minorities. The police, for example, may arrest any person suspected of engaging in ‘unnatural’ sexual relations, whether or not the act has been committed. Therefore, state actors violate rights through the ‘proper’ implementation of Section 377. Section 377 also directly contradicts the legal rights guaranteed to citizens under the Indian constitution. Rights-based arguments have garnered considerable support, yet they are not without some limitations. Feminist and queer dissenters argue that such arguments exclude those individuals who do not or cannot conform to limited notions of sexual identity. For example, hijra is an indigenous gender identity regarded as a ‘third sex’ that is neither man nor woman. It, therefore, defies the notion of binary sexes that is implicit in both heterosexual and homosexual orientations. Some also argue that libertarian ideals may not carry the same moral appeal for Indian judges as their counterparts in the United Kingdom. Therefore, a critical evaluation of the limitations of legal rights discourse in the Indian case is imperative. The Naz petition manifests some of these limitations. First, recall that the petition asks the court to read down and not to repeal the law to allow its use against child sexual abuse. Feminist and queer dissenters argue, however, that reading down the law seems to require leaving existing sexual categories untouched. Consider secondly the use of the right to privacy argument. As the law stands, two men cannot have private sexual relations because homosexuality cannot be conducted within ‘the right kind of privacy’ of a heterosexual marriage. Naz calls for the inclusion of homosexual relations among those privileged private relations that are protected under the constitution. The feminist and queer dissenters respond that once the notion of privacy is understood in its broader social context, it becomes clear that sexual minorities cannot even hope to enjoy the benefits of privacy. Gautam Bhan illustrates that since the homes of hijras are perceived as public ‘brothels’, police can walk in without even a warrant. Therefore, questions concerning who can afford and who is afforded privacy in India merit critical attention. Naisargi Dave’s analysis of the Naz petition captures the essence of the feminist and queer dissenting standpoint: ‘[Naz’s petition] has been critiqued by advocates as an anti-woman, and even anti-poor, political compromise to safeguard certain forms of newly respectable sexual behavior’. The author sees Naz’s efforts to secure privacy for homosexual men as opposing the feminist struggle to challenge the private sphere, which holds several women captive and protection through which remains a fantasy for several others. More generally, the feminist and queer dissenters see the inclusion of gender and sexual minorities into a hetero-patriarchal legal regime as reason for concern. Section 377 also renders it difficult to target HIV/AIDS interventions to sexual minorities and violates their right to life. Due to the threat of prosecution under Section 377, homosexual men do not seek the health services that are necessary for HIV prevention, which makes them vulnerable to transmission. Health service providers also are discouraged from reaching out to the queer community, which diminishes accessibility of services. Section 377 undeniably violates the rights and well being of sexual minorities, even if there is a debate concerning the usefulness of legal rights discourse. This article now turns to arguments against the repeal that have been put forward by the political and religious right in India.

Arguments against Repeal

The standard politically conservative response to the plight of sexual minorities in India has been to deny formal discrimination under the law. The Government of India, in a counter affidavit to the Naz petition, provides, ‘[Section 377] has only been applied on the complaint of a victim and there are no instances of its being used arbitrarily’. Alok Gupta astutely observes that rigid evidentiary requirements have obscured Section 377’s impact on sexual minorities. Since trial proceedings are not recorded, cases that went to trial under Section 377 and were not appealed remain unreported. Gupta recommends a reevaluation of evidentiary requirements as well as notions of harm, cause and injury ‘to fully understand the impact of anti-sodomy laws’. To undermine the plight of sexual minorities, the Government emphasizes the use of ‘neutral’ language in the statute: ‘Section 377 of the IPC does not make any distinction between procreative or non-procreative sex. It only provides punishment for carnal intercourse against the order of nature’. However, although Section 377 does not mention an offense of sodomy, the case law of Section 377 testifies that the state in fact applies the statue in ways that targets sexual minorities. A second argument against the repeal provides that homosexuals are not an Indian minority at all. The Government argues, ‘[there has not been] any history of persecution of MSMs [men who have sex with men] in this country, hence gathering, organising and publicly campaigning for ‘equality’ for such a group has no justifiable rationale’. This argument presents a dilemma for right advocates concerning the use of identity-based arguments. On the one hand, the use of identity categories such as gay and lesbian in legal discourse is inherently exclusionary and generally oversimplified. On the other hand, recognition as sexual minority group is critical within legal discourse that does not recognize equality claims unless they are made in reference to the normative standard of heterosexuality. A third related argument against the repeal posits that Indian society does not tolerate homosexuality. Citing the Law Commission’s 42nd report released in 1971, the Government argues, ‘Indian society by and large disapproves of homosexuality and disapproval [is] strong enough to justify it being treated as a criminal offense even where the adults indulge in it in private’. Since the Law Commission’s more recent 172nd report recommends that Section 377 should be repealed, this argument relies on a false appeal to authority. The more problematic part of this argument, however, is its reliance on majoritarian morality: ‘The public… have shown tolerance of a new sexual behavior or sexual preference but it is not the universally accepted behavior’. Legal reform does not necessarily reflect and may lead to changes in public opinion. The Indian Dowry Prohibition Act of 1961, for example, did not reflect the outlook of a male-dominate public sphere. Furthermore, homosexuality is neither ‘new’ to India, nor a ‘western’ import. There is also at least some tolerance of and ambivalence toward homosexuality in contemporary India. Therefore, public opinion concerning homosexuality is not as monolithic as the Government makes it out to be. The public tolerance of homosexuality is itself extraneous to the deliberation of the rights of sexual minorities. The Government seems to be arguing for Lord Devlin-esque conception of legal moralism that is problematic both from a philosophical standpoint and also by appeal to constitutional rights. The harm principle condemns legal moralism, and it is possible that the harm principle and other appeals to liberty play some role in Indian jurisprudence. The Hindu right is another politically conservative group that argues that homosexuality is against Indian values, where ‘Indian’ is code for ‘Hindu’. Besides delineating ‘natural’ and ‘unnatural’ sexual relations as per usual, the right also distinguishes between ‘modern Indian’ values and ‘western’ values. Since homosexuality is defined as necessarily ‘western’, there is no place for homosexuals within the Hindu state. The leaders of the Hindu right occupy important political positions and influence legislative decision making in India. The courts, however, are relatively distant from their pervasive influence and are more open to secular liberal political voices. The law, therefore, is an important site from which to engage in a political struggle for sexual minority rights. These arguments against the repeal are flawed and cannot justify the prolonged existence of Section 377. A critical analysis of the conservative position reveals that it is against the fundamental rights of life, liberty and equality that are enshrined in the Indian constitution. In the end, these arguments strengthen rather than weaken the case for overturning Section 377.

Conclusions

Based on this article’s discussion of arguments for and against the repeal of Section 377, I want to propose three directions for legal reform. First, a law dealing with the sexual abuse of children should be created. Child rights advocates have campaigned for a separate law that addresses the needs of abused children, which are currently overlooked due to Section 377’s emphasis on ‘unnatural’ acts. The creation of a law dealing with the sexual abuse of children will eliminate the dilemma of deciding between child and sexual minority rights. Second, Section 377 should be completely repealed and not only read down. While legal reform sometimes impedes more radical efforts toward achieving positive social change, that is not the case here. By recognising the limitations and possibilities of legal discourse, rights advocates could and should use legal reform to improve the status of sexual minorities. There is no doubt that the repeal of the sodomy law cannot by itself relieve the plight of sexual minorities. Nevertheless, it may be a significant part of the solution. Third, there is a need for a broader conceptual shift in the understanding of sexuality and sexual assault under the Indian law. Rather than moralistic laws that maintain the hierarchy of natural and unnatural, there is a need for laws that recognise sexuality as a positive aspect of human life. There also needs to be a shift in the aim of sexual assault laws from the protection of the ‘modesty’ of women and children toward a consent-based approach. While some advocates are rightly skeptical about the creation of positive laws that will protect gender and sexual minorities, conjecturing legal possibilities is imperative for creating positive legal change in India.

 * LL.B. Candidate (University College London, United Kingdom), B.A. (University of Toronto, Canada). For inquiries, please e-mail yuvraj.joshi@gmail.com.