A new law for India's sexual minorities

India's colonial-era laws on sexuality must be repealed if its sexual minorities are ever to gain real equality

by Yuvraj Joshi
Fonte;Source: guardian.co.uk, Tuesday 21 July 2009

Earlier this month, the Delhi high court reinterpreted section 377 of the Indian penal code – India's anti-sodomy law. The court decided that a law that criminalises private consensual sexual acts between adults violates rights enshrined in the Indian constitution. This historic ruling was a significant step towards providing legal protection to India's sexual minorities.

The legal battle continues, however. Suresh Kaushal, an astrologer who has appealed against the decision, is concerned that "if such abnormality is permitted, then tomorrow people might seek permission for having sex with animals". Contrary to a UNAids statement that welcomes the decision, Kaushal believes that decriminalising homosexuality would increase the spread of HIV since "HIV virus is a result of unnatural sex".

On Monday, the supreme court refused to put the high court's decision on hold, and asked the government to take a definite stand on the issue. The rights of 17% of the world's sexual minorities depend on the outcome. So what is the best-case scenario?

The background to the continuing court battle is that in 2001 the Naz Foundation filed a petition before the high court challenging the constitutional validity of Section 377. It asked the court to "read down" section 377. "Reading down" gives the law a narrower interpretation by decriminalising private consensual sexual relations between adults. The law continues to exist, but with limited application. Feminist and queer commentators, while supporting the cause, have criticised the petition.

There are several interests at stake. Section 377 is used to prosecute everything from homosexuality to bestiality. Until a separate child abuse law is created, it remains the only recourse to justice for male victims of child sexual abuse. Reading it down (rather than repealing it) allows its continued use for that purpose.

But reading down also leaves existing sexual categories untouched. It fails to protect those who do not or cannot conform to limited definitions of sexual orientation. Hijra, for example, is a gender identity that is often regarded as a "third sex". It defies the notion of two sexes that is implicit in both heterosexual and homosexual orientations.

Naz's focus on privacy is also controversial. As the law stands, two men cannot have private sexual relations because homosexuality cannot be conducted within "the right kind of privacy" provided by a heterosexual marriage. Naz wants homosexual relations to be included among those privileged private relations that are legally protected. When privacy is understood in its broader social context, it becomes clear that sexual minorities cannot even hope to enjoy its benefits, however. Privacy is not the reality for most Indians outside the upper and middle classes. They simply cannot afford it. Since the homes of hijras are viewed as public "brothels", police can walk in without even a warrant.

There are considerable difficulties in merely reading down section 377. Three directions for legal reform could overcome them.

First, a law dealing with the sexual abuse of children should be created. As the sole mechanism for prosecuting child sexual abuse, section 377 is inadequate. Child rights advocates have campaigned for a separate law that addresses the needs of abused children. These are currently overlooked due to section 377's emphasis on "unnatural" acts.

Second, section 377 should be completely repealed and not just read down. Reading down is undoubtedly a positive step insofar as it softens the brunt of the law. It is a testament to remarkable advocacy on part of countless activists. Nevertheless, it is not the best-case scenario. The supreme court, on appeal, (or the government before then) would be best advised to repeal the law altogether and start anew. This would be the symbolic destruction of an oppressive colonial-era law. Significantly, it would also create an opportunity to reconceptualise state regulation of sexuality. A new legal regime will probably be no worse than the present. If the political moment is right (say, if India hopes to impress a more liberal White House), it may well be better.

Third, there is a need for a broader conceptual shift in the understanding of sexuality and sexual assault. The law should reject moralistic hierarchies and recognise sexuality as a positive aspect of human life. The aim of sexual assault laws should also shift from protecting the "modesty" of women and children towards a consent-based approach.

The law, however, is just one part of the discrimination that sexual minorities are subjected to. Reading down or repealing section 377 cannot by itself secure substantive equality for them. To illustrate this point, one need only look at women who are guaranteed formal legal equality and still remain second-class citizens. But legal change will help to create conditions that are conducive to impending social change.