Section 377, Indian Penal Code, 1860, was legislated by the British colonial regime to forbid, and hence, criminalise “carnal intercourse against the order of nature.” It was ingrained in the Judeo-Christian religious morality that loathed non-procreative sex. Therefore, the history of the section that the sexual ‘majority’ in India is trying to defend on the grounds of ‘culture’, doesn’t have its origin in the Indian culture to begin with. However, that’s not what we are discussing today.
In the early 1990s, the draconian law earned the attention of reformers as it was perceived to impede HIV/AIDS outreach for vulnerable groups, specifically those people who were engaging sexual acts that were criminalised under the law. The movement to repeal Section 377 was initiated by AIDS Bhedbhav Virodhi Andolan in 1991. Their historic publication, Less than Gay: A Citizen’s Report, pointed out the problems with the Section and asked for its repeal. A 1996 article in Economic and Political Weekly by Vimal Balasubrahmanyan titled, ‘Gay Rights in India’, chronicles this early history. As the case prolonged over the years, it was revived in the next decade, led by the Naz Foundation (India) Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults.
Though presumably applicable to both homosexuals and heterosexuals, the section calls for a complete prohibition on sexual acts engaged in by the LGBTQIA+ community. This put them at a greater risk of acquiring and transmitting HIV infection, due to a high level of risky behaviour and insufficient power for decision-making to protect themselves from infection. Not only that, the section also makes it very difficult for the group to seek medical help for fear of being ‘exposed’.
Prevention efforts are severely impaired by state agencies’ discriminatory attitudes, which found a convenient mask of enforcing Section 377. As a result of this, basic fundamental human rights of such groups stand denied. They are subjected to abuse and harassment from both private and public authorities.
In Naz Foundation v. Union of India, the state’s representatives argued that the law serves the cause of public health by criminalising homosexual behaviour. Ironically, this purported legislative purpose is in complete contrast to the averments in the National Aids Control Organisation’s (NACO) affidavit. NACO has specifically stated that enforcement of 377 adversely contributes to pushing the infliction underground, making risky sexual practices go unnoticed and unaddressed.
The report of the Expert Group on Size Estimation of Population with High Risk Behaviour for NACPIII Planning, January 2006, estimated that there are about 25 lakh MSM (men having sex with men). The National Sentinel Surveillance Data, 2005 shows that more than 8% of the population of MSM is infected by HIV, while the HIV prevalence among the general population is estimated to be less than 1%.
It’s members of this High Risk Group that are most reluctant to reveal their sexual behaviour due to their fear of law enforcement agencies. This keeps a large section invisible and unreachable, and hence pushes cases of infection underground, making it very difficult for public health workers to access the very individuals who need them most.
The fear of harassment by law enforcement agencies leads to sex being hurried, particularly because these groups lack safe spaces, often have to resort to public spaces – so, and do not have the option to consider or negotiate safer sex practices. It is stated that the much-hidden nature of such groups constantly impedes interventions under the National AIDS Control Programme. Thus, NACO supports the need to have an enabling environment where people are encouraged not to conceal information so that they can be provided total access to the services of such preventive efforts.
What makes things worse is that the section not only affects those who are HIV positive, but also those who are working in the area of HIV/AIDS treatment. For instance, a report titled, Epidemic of Abuse: Police Harassment of HIV/AIDS Outreach Workers in India published by Human Rights Watch, showed what happened in Lucknow in 2002.
In this case, the police, while investigating a complaint under 377, picked up some information about a local NGO (Bharosa Trust) which was working in the area of HIV/AIDS prevention and sexual health amongst MSMs. The police then raided its office, seized safe sex information material and arrested four healthcare workers. Even in absence of any prima facie proof linking them to the reported crime under Section 377 IPC, a prosecution was launched against the said healthcare workers on charges that included Section 292 IPC, treating the educational literature as obscene material. The health workers remained in custody for 47 days only because Section 377 IPC is a non-bailable offence.
Section 377 of the IPC, denounces a sizable section of society, in perpetuity, and compels them to live their lives in the gloom of harassment, exploitation and humiliation; not to mention cruel and degrading treatment at the hands of the law enforcement machinery. We hope that the Supreme Court, which is currently looking at the section, considers all discriminatory aspects of the law before decriminalising it.
A 24-year-old postgraduate in Political Science, Riya leads a global team of writers for iuventum. She finds comfort in poetry.
Featured image credit: Reuters