Most of the time, a Gays and Lesbians end up being harassed, (mentally or physically) and at times even arrested under irrelevant laws. At other times, one continues to bear the torment and harassment, just because he or she is unaware of the laws, or has not fully understood the law. It is best to be armed with an understanding of position of Gay rights in India.

Gay Rights : Position in India

In India, homosexuality has traditionally been tolerated, even celebrated, although the Manu Smriti pronounces severe punishments for male as well as female homosexuality. The Kamasutra contains an entire chapter entitled "Auparishtaka" (oral congress) and Vatsayana, the author insists that the practice is permitted by the orders of the holy writ (Dharma Shashtra) with just a few exceptions. One of the forms in which Shiva is worshipped is Ardhanarishwara, containing both the female and male energies.

Alan Danielou in his book, "Shiva and Dionysius". examines the tantric rite of anal penetration and goes on to state "the hermaphrodite, the homosexual and the transvestite have a symbolic value and are considered privileged beings, images of Ardhanarishwara".

The British obviously found the practice unchristian and abhorrent and in 1860, enacted the Indian Penal Code which in Section 377 states:

"Unnatural offenses - Whoever voluntarily has carnal intercourse against the order of nature with any man, woman, animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to 10 years, and shall be liable to fine.

Explanation - Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section".

The exact scope of this vague definition - "carnal intercourse against the order of nature" - has been a major subject of debate in the existing case law. It has generally been interpreted to include acts of anal sex (coitus per annum) as well as oral sex (coitus per os) between males. The possibility of this definition being extended to heterosexual acts of anal or oral sex also exists, but has not been tested. Consent of the other party is completely irrelevant for conviction, but it may be a relevant consideration while fixing the quantum of punishment.

It must be pointed out that homosexuality per se is not an offense and an "act" of unnatural intercourse has to be proved.

Update on the status of the petition filed in Delhi High Court

The petiiton has been drafted by Lawyers Collective HIV/AIDS Unit on behalf of Naz Foundation India (a Delhi-based NGO)."

The fact is arguments in the case have not yet begun, even a year after the case has been filed. Only 2 things of some significance have happened 'on the record' - 

• The Union government has been directed by the High Court to file its reply to the petition, which the government has not yet done. On the last occasion when the case came up i.e. 27 November 2002, the Additional Solicitor General representing the government informed the court that the government had sought the Attorney General's opinion in the case, which is awaited. The court noticed (a 2-judge bench) that the case should not be coming up before them (due to them being assigned a different set of cases to be heard) and that it should go to the Chief Justice of the High Court who would decide the judges to be assigned this case. This was supposed to happen on 10 December but did not since the Chief Justice did not sit that day. We now expect the case to come up after the court's winter break i.e. sometime in January 2003 although the exact date is not known.
  
  
• At an earlier stage of the case (approx. April 2002) an organisation known as JACK (Joint Action Council Kannur) sought to file their own case in the court which argued that our petition was not sustainable before the Delhi High Court on various grounds including the argument that HIV/AIDS does not exist (one of the grounds our petition seeks decriminalisation of sodomy since its continued criminalisation impedes the health of MSM by pushing the behaviour underground and making it impossible for effective HIV/AIDS interventions). The court rejected JACK's petition but permitted JACK to intervene in our case (i.e. they are now made a party in our case and their point of view will be heard and considered by the court).

Below is a brief summary of the petition and the language contained in Section 377 of the Indian Penal Code.

Section 377 of the IPC states: "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.

Explanation, - Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

The section is a vestige of the British, criminalises acts of oral and anal sex committed either between a man and a man, a man and a woman or a man and an animal. Substantively the law applies equally to homosexuals and heterosexuals and does not differentiate between consensual and coercive sexual activities. Although Sec.377 does not criminalise homosexuality, it is mostly used as a tool to harass and abuse sexual minorities.

The writ petition filed in the Delhi High Court, challenges the constitutional validity of this section on grounds, inter alia, that:

• It violates the fundamental rights to privacy and equality of sexual minorities, guaranteed to every citizen of India under the Constitution.

• It is a major impediment to carry out HIV/AIDS intervention work with the MSM community as it drives high risk behaviour in terms of unprotected anal and oral intercourse underground and beyond the reach of safe sex interventions.

• The petition seeks a 'reading down' of Sec. 377 (i.e. the section should be interpreted to cover only non-consensual sexual activities, thus excluding consensual sexual activities between adults). 

• The petition also seeks interim relief that pending final hearing and disposal, the Delhi police will stay the implementation of Sec. 377.

Vivek Divan
December 17th, 2002.

For any queries please feel free to email the Lawyers Collective at aidslaw@vsnl.com

The Latest Latest on the petition (as on May 6th 2003)

Yet another delay! The Petition which was to come up for hearing in the Delhi High Court on May 5th, 2003, has been pushed to August 8th, 2003. It will hopefully be heard then.