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The South and Southeast Asia Resource Centre on Sexuality

 sexuality
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Human Rights Challenging the Penalization of Same-Sex Sexual Activity

The South and Southeast Asia Resource Centre on Sexuality hosted a discussion on

20 February 2007 (Tuesday)
4:00 – 7:00 pm
Alliance Française, 72, Lodi Estate, New Delhi

Section 377 of Indian Penal Code (IPC) 1860, 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 stigmatized and criminalised a section more than others, namely the same-sex desiring people, including those who identify as lesbian, gay, bisexual and transgender (LGBT), hijra, kothi and other Queer people.

This discussion focussed on some of the streams and segments of human rights that challenge the penalisation.

Programme

4:00 – 5:30 pm

Robert Wintemute is 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. He 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.

Arvind Narrain is a lawyer with and founder member of the Alternative Law Forum, based in Bangalore, India. He 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.

Pramada Menon is Director Programs, Creating Resources for Empowerment in Action (CREA), a NGO based in Delhi, India. She reflected on some of the issues around the penalisation - from a gender perspectives.

Vrinda Grover is a lawyer based in Delhi, India. As the chief discussant she commented briefly on Wintemute, Narrain and Menon, and posed some issues for clarification and discussion.

5:30 – 6:15 pm
Comments, questions and general discussion.

6:15 – 7:00 pm
Tea/coffee, light snacks, and informal discussion.


More about the Speakers:

Professor Robert Wintemute is the author of Sexual Orientation and Human Rights: The United States Constitution, the European Convention, and the Canadian Charter (Oxford University Press, 1995/1997), and the editor (with honorary co-editor Mads Andenæs) of Legal Recognition of Same-Sex Partnerships: A Study of National, European and International Law (Oxford, Hart Publishing, 2001). He has drafted interventions by LGBT and other NGOs in the European Court of Human Rights (adoption of children by lesbian and gay individuals, and recognition of unmarried same-sex couples), and the Massachusetts Supreme Judicial Court (equal access to legal marriage for same-sex couples), and served as Co-President of the largest-ever International Conference on LGBT Human Rights, 1st World Outgames, Montreal, 26-29 July 2006. He assisted with Yale Law School's intervention in Lawrence v. Texas (2003), which the US Supreme Court cited in its decision to strike down the "sodomy" laws that remained in around 13 states.

Arvind Narrain is a lawyer with and founder member of the Alternative Law Forum, which is a collective of lawyers who work on the human rights of disenfranchised groups and communities be it on grounds of gender, class, caste or sexuality. As part of the specific work on queer rights he has worked closely with the People’s Union of Civil Liberties - Karnataka (PUCL-K) and come out with a report on the human rights violations against sexuality minorities and the transgender community. The report of 2001 highlighted human rights violations against sexuality minorities; and the 2003 report specifically looked at human rights violations against the transgender community. He is also the author of Queer: Despised Sexualities and Social Change and co-editor of Because I Have a Voice: Queer Politics in India.

Pramada Menon is Co-Founder and Director Programs, CREA, a women’s human rights organization working on issues of sexuality, violence against women, and, social justice. She has worked for over two decades on gender, sexuality and human rights as an activist and trainer – nationally and internationally. Pramada has worked extensively with community based organizations and coalitions to advance sexual rights in India. She is on the Advisory Council of The Global Fund for Women.

Vrinda Grover is a lawyer. She has represented diverse clients, including, survivors of sexual and domestic violence, communities affected by communal, custodial violence, trade unions, political activists, undocumented migrant workers and refugees. She has been active in the women’s movement and has participated in the campaigns and drafting of laws relating to the Prevention of Domestic Violence law, the Bill on sexual harassment at the workplace, the reformulation of the sexual assault law and critique of the Communal Violence Bill, 2005. She is a founding member of the Citizens Campaign for Preserving Democracy, and a member of the All India Committee Against Death Penalty. She is on Advisory Board of the India Campaign for an International Criminal Court and a Board Member of the Centre for Social Justice, Ahmedabad.

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