Delhi 7
As mentioned in Arlene’s blog, s.377 of the Indian Penal Code was struck down for the jurisdiction of Delhi; a move with decriminalizes homosexual intercourse, among other ‘non-natural’ (language used from the wording of the criminal code) sexual acts for those above the age of 18.
At the regular Friday meeting, a member of the HIV/AIDS unit made a presentation regarding the impact of this change for members of the gay community, and those affected with HIV/AIDS alike.
Some points of interest.
1) First, the legal battle to repeal s.377 was not initiated by a mainstream gay rights movement, but the Naz foundation, an AIDS service organization focused on securing treatment and support for people with HIV/AIDS, as well as prevention strategies.
I feel this move succinctly captures the intersection between legal structures and institutions—which are conducive to and justify discrimination towards marginalized populations such as the gay community in India--- and the spread of HIV/AIDS.
Criminal offences such as 377 forced MSM (men who have sex with men) to have intercourse away from the attention of the community. That is, men would not invite their partners over to their house for fear of the rumours that may start with their neighbours, and instead have intercourse in high stress and high risk locations such as dark alleyways and parks. These rushed encounters are more condusive to the spread of HIV/AIDS given the lack of protection such as condoms and increased propensity for small wounds etc.
2) Media outlets such as the BBC have sensationalized the issue, implying that homosexuality is decriminalized in all of India, when in fact, the decision only applies to the state of Delhi. As such, although the decision is a great leap forward and holds great promise, it is only benefitting a minority of India’s homosexual population.
3) The response to this change of s.377 has united Hindu, Muslim, and Christian religious organizations and political parties to mobilize against this decision. It will be interesting to see if the Government will appeal this decision to the Supreme Court of India since if they lose, this decision will have binding authority in every Indian state. It is a legal gamble which may backfire for the Government or worse, repeal this forward looking decision.
4) As noted by the Friday meeting, the popular response to this change is extremely interesting. One of the members of the HRLN staff was of the opinion that this decision would start a trend in India whereby the youths would take up homosexuality as a fashion trend.
Another lawyer made the ‘slippery slope’ argument that the decriminalization of HIV/AIDS would lead to the decriminalization of bestiality and rape. (!?) This same lawyer also commented that the amendment to s.377 only applied to gay men, and not lesbians (though the language of the act says ‘homosexual persons)
Some other members of the staff engaged in a debate whether homosexuality was a biological trait, or learned behaviour.
There was also a discussion as to whether 95% of the Indian population was heterosexual, or bisexual.
5) My reactions to these discussions was initially one of frustration. I felt that some of the claims were outlandish, discriminatory, and moot (i.e why does it matter if homosexuality is biological or learned behaviour? Human rights inhere in the individual regardless). I engaged in the discussion, noting that language is extremely important, and that phrases such as ‘there is a danger that people will turn homosexual’ and ‘given the fear of homosexuality’ frame the conversation to imply that homosexuality is inherently negative, and that even if it was true that more people would come out of the closet, then this was not negative, but a positive development.
6) As the discussion continued, I saw another side to the story. Just as those individuals were presenting their points of view, other lawyers and staff were steadfast in explaining that the decriminalization of homosexuality cannot be compared to bestiality and rape- as these are sexual acts which lack consent; that the wording of s.377 is not gender specific- that homosexuality is not a fashion trend, nor is it learned from the west. This is the other side of the story, and to be an observer and participant in this discussion was extremely interesting and invigorating. I felt like I really was part of a struggle and was able to position myself in the place of Gay activists in the 80s and 90s in North America.
It was a fascinating learning experience and really highlighted the bravery and leadership of those individuals fighting for human rights as they relate to homosexuality, in this social climate.