Wednesday, July 09, 2008

Article 377 and Alternate sexuality

Recently there was a Gay Parade in Bangalore, Delhi and Calcutta. This reminded me that sometime back we had done a whole issue on Alternate Sexuality in Sattva in October.

I read somewhere some BJP leader commenting that it was against the tradition and blah and all. I really dont understand, why people have to bring religion/tradition in to this. My only point is that most people know so little. I remember when young, I would have asked this question 2-3 times, I never got any answers or got very unconvincing answers. It was always an hush-hush topic. Most of us just put 2 and 2 together and come up with out own conclusions, at least I did not know lot of things when we did that issues.

So here I am going to put one FAQ that I had prepared for that Issue. It is related to article 377 of Indian Constitution the act against which this parade was there.

Here is the article,

This article was written by me and originally published in the Oct 2007 issue of Sattva, an ITIHAS initiative. Sattva, is an ITIHAS initiative: an e-magazine focusing on the social sector.
Related Sattva Issue .. Oct 2007, Liberté, Egalité, Fraternité РFreedom, Equality and Brotherhood

FAQ on Section 377,
Section 377 is one of the most frequently contested and controversial legal sections in ‘The Indian Penal Code’. And here are some reasons why

What is section 377?
Section 377 of Indian penal code was drafted as early as 1860. and it reads as follows.

"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine."

How is this section used?
Today this section is mostly used to harass people. Police use this section to blackmail and extract bribe from various gay communities.

Is there a petition filed to repeal this act?
The petition to repeal this act was drafted by Lawyers Collective HIV AIDS unit on behalf of NAZ foundation in December 2002. This petition was rejected by Delhi High Court in Sept 2004. In April 2005, this case came up in Supreme court before a bench headed by Justice Sabharwal. They saw reason to remand the case back to the Delhi High Court, that is where it stands today.

What events led to this petition?
On 7 July 2001, police raided a park in Lucknow that was frequented by the MSM (men who have sex with men) community. The raid led to the arrest of an outreach worker of the Bharosa Trust, a NGO working with the MSM community in the area of HIV/AIDS prevention. The police also raided the offices of Bharosa and Naz Foundation and seized materials from there, arresting nine people in all. The media sensationalised the arrests, describing the police action as the busting of a sex racket. The arrested persons were remanded to judicial custody on 8 July 2001; and were charged with section 377 they were allegedly beaten up and their offices sealed.

What are the main arguments to repeal this act?

  • It violation of the right to life as a result of HIV/AIDS prevention work being impeded, and the MSM (Gay) community going underground, i.e., refusing to publicly avail of HIV-prevention options such as condoms, out of fear of being arrested
  • this law's proscription of "non-procreative sexual activity" violates the right to life because a person's sexual preferences are an inalienable component of this right.
  • It enables and perpetuates social stigma and police abuse
What is Governments argument not to repeal this act?
  • Section 377 has been applied to cases of assault where bodily harm is intended and deletion of the said section can well open the floodgates of delinquent behaviour and be misconstrued as providing unbridled license for the same
  • Section 377 reveal that it has been basically used in India to punish sexual abuse of children and to complement lacunae in the rape laws

Does similar section exists in England?
Interestingly no, this section was introduced by British in India in 1860s, but this act has been repealed in England quite long time back.

Which organizations are working towards repealing this act?
Naz Foundation, Delhi, is working with Lawyers collective in spearheading this petition. There is a forum of NGOs, called "Voices against 377" who are actively supporting this petition. In addition this petition gained a wide scale publicity and support, with the open letter written by Vikram Seth to repeal this act. This letter was supported by people like Amartya Sen, Pooja Bedi, Shyam Benegal.

Related Reads... The Queer Case of 377 by Siddharth Narrain

PS: Sattva is looking for writers, people who want to write about various social issues/solutions, Do drop in a comment if someone is interested.


Chaitanya Sai said...

This is a wonderfully relevant post Goli.

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sudharm baxi said...


Yes indeed, an informative post.

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Hope to hear from you..

Anonymous said...

helo mr goli. i had read ur article on seemed quiet intellect. i always wonder y intellects like u discard tradition and some cases dont forget they r stronger than science.ur views oppose both science and religion.on wat grounds r u standing now.if ur talking about individual rights, show me one who is not in society.if u have to support article 377 then u also have to support incest.a mature father and daghter can make love based on the personal choice, will u agree with this idea?if r rejecting it pls tell us sex is not natural however i dont think criminalising their acts will stop their behaviour. organisations like naz should find alternate means to educate them.tomoro ur or my kid may ask that he/she wants to be

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