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Repealing 377: Sodomy Laws in India

Written By: Khushbu Srivastava
June 30, 2009

 

Gay pride marches swept through India this Sunday in a burst of colors and joy that celebrated the growing confidence of LGBTQQI communities to assert their claims for equality. Marches in the streets occurred alongside several quieter moves of government officials on a related legal case that has waged in India for the last seven years. Penal Code 377, a relic of British rule, criminalizes “unnatural sex” and has been disproportionately applied to legitimize violence and discrimination against gays, lesbians and transgendered people, particularly by the police. In 2002, the Naz Foundation, a human rights organizing working on HIV/ AIDS in India, filed a Public Interest Litigation case challenging the constitutionality of this code. Since then, various ministries have fought amongst themselves in a complex legal battle.

In the midst of the parades, the three ministers who will drive the decision regarding this law (Home Minister, Health Minister and Union Law Minister) agreed to hold a meeting to review the law – the first of its kind since the Congress party was sworn in for its second term in late May. When the new Home Minister, P. Chidambaram, stated his support for repealing the archaic code, it appeared to be a turning point. (In the prior government, the Home Ministry led a coalition to keep the code in place, while the Ministry of Health, called for its repeal.)

However, as activists and the press hailed the victory, Veerappa Moily, Union Law Minister, retracted. He stated that the government would not rush into any decision and would weigh carefully the interests of all groups. Moily remained ambiguous about the outcomes of such a meeting, stating “It could lead to a repeal of the section in the IPC. It may also mean not repealing a particular section.”

Was the apparent enthusiasm of government officials a temporary attempt to pander to a clearly growing and visible Indian constituency, or do we really have reason to believe that there is a growing confluence between the interests of the new government and international human rights standards? During last year’s 17th International Conference on AIDS in Mexico City, former Minister for Health and Family Welfare, Dr. Anbumani Ramadoss, argued for the need to decriminalize homosexuality in order for programs effectively reach out to the most excluded. At home, however, few government leaders have stood up strongly for repealing 377 against religious and social conservatives.

In this delicate political dance, perhaps the clearest victory has been for activists. Repealing penal code 377 has been a common goal to effectively coalesce and strengthen an LGBTQI movement and broaden its links with others working on issues of health and human rights. A good example is the creation of Action Plus (PDF), a network of 14 organizations working on HIV/AIDS and human rights. This year, Action Plus hosted a series of panel and community discussions in major cities across India to discuss issues of stigma and homophobia. Designed to buttress civil society support for the legal process underway, the Action Plus forums resulted in new partnerships between those in the religious community with civil society groups, as well as an increased awareness for how discrimination makes people more vulnerable to HIV/ AIDS. Such grassroots education and outreach has helped queer couples and individuals seek shelter, support and empowerment from organizations like Sangama, in Bangalore who work with sexual minorities.

To the commendable courage and strategizing of queer activists and allies, efforts to repeal Penal Code 377 have worked concurrently at legal and social levels. What remains needed is strong leadership within the new government to recognize the urgency of repealing an archaic law that perpetuates violence and hatred and fuels HIV/ AIDS.

Khushbu Srivastava is the Program Officer for Asia at the International Women’s Health Coalition. Read her bio here.

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