South Asia Citizens Web | September 18, 2003
Open Letter To Counter Indian governmentís Assertions Against decriminalisation of Homosexuality and To Create Public Opinion In Support of The Rights of Sexuality Minorities
----- Original Message -----
From: "PRISM New Delhi" <firstname.lastname@example.org>
Date: Mon, 15 Sep 2003 13:52:13 +0530
Subject: Fw: URGENT: government response to Section 377
The Union Government, on the 9th of September, finally responded to the petition filed in the Delhi High Court by Naz Foundation (India) Trust, in 2001. Naz has been represented in the case by the Lawyers Collective. The governmentís response is cause for grave concern. It has drawn upon familiar notions of `Indiannessí and morality, denied violations of human rights and looked at law reform in an extremely regressive manner. An open letter (pasted at the bottom of this email), to be sent to newspapers, has been drafted by PRISM [ People for the rights of Indian Sexual Minorities <email@example.com ] and CREA [Creating Resources for Empowerment in Action <firstname.lastname@example.org ], which seeks to respond to the position taken by the State on behalf of individuals and organizations. This effort is important to publicly counter what the government has said, as part of the larger objective of opposing criminalization of adult consensual sexual activity and raising awareness about issues relating to same-sex sexualities. We hope that you will add your name to the letter. [...].
QUOTES FROM THE GOVERNMENTíS AFFIDAVIT
Quoting the 42nd report of the Law Commission, the government claims that ìIndian society by and large disapproves of homosexuality and disapproval was strong enough to justify it being treated as a criminal offence even where the adults indulge in it in private.î
The proposed changes in law, the Centre said, ìcan well open the flood gates of delinquent behavior and be construed as providing unbridled license for the sameî.
Justifying Section 377, the centre said: ëíThe purpose of section 377 of IPC is to provide a healthy environment in the society by criminalising unnatural sexual activities.íí
Replying to the petitionerís allegations that Section 377 violated the right to equality (Article 14), right to freedom (Art 19) and right to personal liberty (Art 21), the Centre said ìnone of these rights were infringedî and that each of them were subject to reasonable restrictions.
The Government claimed that Section 377 of IPC has been basically used to punish child sexual abuse and to complement lacunae in rape laws and that it has rarely been used to punish homosexual behavior.
The Government also questioned the NGOís locus standi to approach the court on this issue, saying ìno one except those whose rights are directly affected by the law can raise the question of its constitutionalityî.
On 9th September, 2003, the Union Government filed an affidavit in response to a petition filed by the Naz Foundation (India) Trust before the Delhi High Court, asking the court to decriminalise private, consensual adult sexual behavior. The Governmentís response is cause for grave concernóits position is in contravention to its role as the upholder of the fundamental rights of all citizens.
The government affidavit supports Section 377 of the Indian Penal Code, which states that ëwhosoever voluntarily has carnal intercourse against the order of nature with any man, woman, or animal, shall be punished with imprisonment for life or 10 yearsí. With respect to the arguments presented by the State, we, as concerned citizens and representatives of womenís groups, child rights groups, human rights organisations, sexual minorities groups, and NGOs seek to clarify that:
a) The State cannot deny that Section 377 violates the rights of Indian citizens. Section 377, in its present form, denies the right of sexual expression. Other than same-sex sexual acts, non-procreative heterosexual acts including oral and anal sex also fall under the purview of this law. Moreover, Section 377 violates the right to life and liberty, the right to health and the right to equality before the law and freedom from discrimination for many sections of society such as gays, lesbians, bisexuals, transgender people and hijras. These people are affected by Section 377 on a day to day basis. The stigmatisation attached to their choices is so severe that they are disowned by their families, subjected to shock therapy by doctors, are brutally harassed by the police, and are unable to avail of legal redress against discrimination. Section 377 is also used by the police to threaten NGO workers who distribute condoms and impart safe sex education amongst, for instance, men who have sex with menócommunities extremely vulnerable to the transmission of the HIV virusówith charges of abetment of and attempt to commit Section 377.
b) By speaking the language of moral panic, the State is to seeking to draw attention away from these tangible human rights violations. It is a fundamentally flawed logic that the government is using when it argues that legal reform cannot take place because `Indian society by and large disapproves of homosexualityí. The government cannot impinge upon the rights of citizens who fall outside its ideas of ëIndiannessí. Indian culture is not monolithic; it cannot be used as an excuse for discrimination. Diverse sexual expression is a well-recorded part of Indiaís history and of her culture. Moreover, our laws are meant to enshrine principles of justice that Indian society should abide by. If all laws were drafted on the basis of popular opinion, progressive legislations such as the anti-Sati and anti-dowry laws would not have been possible.
(c) The deliberate and repeated assertion by the government that this petition will prevent the court from being able to protect children from sexual abuse is patently false. The petition is not seeking a repeal of Section 377, but merely a decriminalisation of consensual, private, adult sexual behaviour. Should the petition succeed, the stateís ability to use Section 377 in child sexual abuse cases remains unaffected.
As individuals and groups that support and affirm the rights of gay, lesbian, bisexual, hijra, and transgendered people, we demand that the government enable the protection by the law of all citizens, without discrimination based on gender or sexual orientation. Towards this end, there is an urgent need to decriminalise sex between consenting adults. It is not the business of government to decide what people choose to do with complete consent without infringing on the rights of any other citizen. It is the business of the government, however, to frame effective laws that prosecute heinous crimes such as child sexual abuse.
The government has stated in its affidavit each of the fundamental rights are subject to ëreasonable restrictionsí. Restricting the access of millions of citizens to proper health care, failing to address rampant discrimination on the basis of their sexual preference, failing to protect them from harassment by the police and criminalising their consensual sexual acts while hiding behind the fig leaf of protecting Indian culture, are not reasonable restrictions by any standards. We urge the government to reconsider its position, bringing it in line with the requirements of the Constitution of India with regard to Fundamental Rights of every citizen and with the Universal Declaration of Human Rights.