Human Rights Challenging the Penalization of Same-Sex Sexual Activity

The South and Southeast Asia Resource Centre on Sexuality hosted this discussion on 20 February 2007, 4:00 – 7:00 pm, at Alliance Française de Delhi, 72, Lodi Estate, New Delhi.

The panel was centered on the kinds of penalization of the nature of Section 377 of the Indian Penal Code (IPC) 1860, which makes illegal ‘carnal intercourse against the order of nature’ thus:

“377. Unnatural Offences.
Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The law penalises certain sexual acts equally. For example oral sex, regardless of whether it is heterosexual or homosexual; even penile-masturbation of one person by another, is considered criminal. Although facially neutral, the law has effectively stigmatised and criminalised a section of people more than others, namely same-sex desiring people, including those who identify as lesbian, gay, bisexual and transgender (LGBT), hijra, kothi and other queer people.

The speakers focussed on some of the streams and segments of human rights that challenge similar such penalisation.

Speakers included: (i) Arvind Narrain, a lawyer with and founder member of the Alternative Law Forum, based in Bangalore, India; (ii) Pramada Menon, Director Programs, Creating Resources for Empowerment in Action (CREA), an NGO based in Delhi, India; (iii) Robert Wintemute, Professor of Human Rights Law in the School of Law, King’s College, University of London, where he teaches European Union Law, Human Rights Law, and Anti-Discrimination Law. Vrinda Grover was the chief discussant at the panel. She is a lawyer based in Delhi, India. More information about the speakers the chief discussant is available at the end of this report. Xiaopei He, Director, The South and Southeast Asia Resource Centre on Sexuality was the Chair.

Each speaker made a presentation of about 20 minutes. Robert Wintemute spoke about international and comparative law on penalisation of same-sex sexual activity, and the importance of interventions by LGBT and other non-governmental organizations (NGOs) in human rights cases before the courts. He focussed on judicial protection of human rights, as opposed to the possible role of legislators. Legislators, he said laughingly, often don’t like to talk about sex. He gave examples of the case law from the European Court of Human Rights (Dudgeon v. UK, Norris v. Ireland, Modinos v. Cyprus), the US Supreme Court (Bowers v. Harwick), United Nations Human Rights Committee (Toonen v. Australia), etc. He then shared from his involvement in the Yale Law School's intervention in Lawrence v. Texas (2003) in the US Supreme Court. He highlighted the potential of agencies like Universities, NGOs, etc in playing a supportive role in the judicial decriminalization. Please click here for a copy of his write up.

Arvind Narrain spoke about how the challenge to Section 377 has emerged as one of the key objectives of the ongoing queer struggle in India. He located the challenge to the law as a part of the emergence of a politics based on gender identity and sexual orientation towards the last decade of the 20th century – in India. He also reflected on what the challenge to the law means for bringing about a change in the attitudes of Indian society, to queer sexuality; and also what a change in the law would mean for queer people. He spoke of the liberatory potential of queer ideology in challenging state control over sex. He referred to a range of quotations from George Orwell to EM Foster to B.R. Ambedkar and put it in the context of cross caste love marriages in India. He concluded that the opposition to Section 377 should embody a wider social and political struggle against the oppressions of caste, class and gender. The opposition to Sec 377 has to be legal, ethical, social and political. Please click here for a copy of his write up.

Pramada Menon reflected on some of the issues around the penalisation from a gender perspective. Amidst other aspects, she commented on the apparent invisibility of same-sex desiring women, whether they call themselves lesbian or not. Ironically, she said there have been recent moves to highlight the plight of women in the ongoing litigation challenging the penalisation in India. She expressed an apprehension that perhaps courts were a less-than-desirable space for this visibility. The case law shows that only men have been convicted so far. She raised concerns over the potential risk of bringing women into the judicial discourse when they have not really been a direct subject of Section 377.

As the chief discussant, Vrinda Grover commented briefly on Wintemute, Narrain and Menon, and posed some issues for clarification and discussion. For example, commenting on the liberatory potential of queer ideology, as outlined by Narrain, she said that this conceptualisation required further problematisation and much would depend on the praxis of politics adopted by the queer movement. She observed that the experience of the women's movement showed that courts were only one of the multiple sites of change. She also posed the query whether the present framework of international human rights was adequate or another paradigm is to be evolved to address the myriad issues raised by the queer movement.

The discussion was attended by about 50 people. These included journalists and media correspondents; some staff members of organisations like the International Planned Parenthood Federation (IPPF), Global Campaign for Microbicides (of PATH), Nigah Media Collective, Butterflies, Aman Trust, Kriti, The Ford Foundation, and CREA; a freelance photographer; few lawyers; and some students from educational institutions like the Jawaharlal Nehru University (JNU), the School of Planning and Architecture (SPA), the Lady Sri Ram (LSR) College, the University of Durham, UK, University of California, Irvine, USA, and the University of Delhi.