Should homosexuality be legalised?

[Guest guest]

Should homosexuality be legalised?

[TOI SUNDAY, JUNE 30, 2002 12:35:17 AM ]

ASHOK RAU

The Indian Penal Code was drafted in the n age when the popular wisdom

was that homosexuality was an aberration that needs to be rectified by the

state.

That was the logic behind the inclusion of Section 377 in the Code — it

criminalises all forms of sexual intercourse other than penile-vaginal. However

that understanding has since changed. Today, homosexual marriages are recognised

and allowed in many countries.

In India, anti-sodomy laws have had a history and outlook of extreme moralistic

overtures. The reality is otherwise. There exists enough documentary,

archaeological and anthropological evidence to suggest that same sex ties,

especially among men, were not only culturally acceptable, but also dignified

and revered by attributing similar traits to religious deities.

Even though the insensitivity of Section 377 was a fallout of n England,

the rulers of independent India have done nothing about this.

In India, two parallel trends exist today as far as men who have sex with men

(MSM) are concerned. The first is a pseudo acceptance of same sex relationships,

arising out of non-acknowledgement of the very existence of homosexuality.

It’s a society in denial where homosexuality is not spoken of at all and ignored

where visible. This has its benefits — homosexuals are generally left alone. But

it also means that no measures are taken for them or for protection of their

basic rights.

The second trend is an outright reaction by certain segments who consider

homosexuality alien to Indian culture, and a corrupting influence. This

translates into violations of their basic rights.

The legislature has conveniently ignored the existence of homosexuality and done

little to revoke the discriminatory laws. The executive too has had periodic

‘drives’ for arresting homosexuals from public as well as private spaces.

Other activities include banning publication of material of interest to

homosexuals, refusing to give protection to threatened individuals on the basis

of their sexuality, protecting groups that have indulged in organised gay

bashing (Fire protests by the saffron brigade), etc.

The judiciary too has not addressed the issue of homosexuality, and whatever

little reference there is in judgments has had a moralistic bias. Other laws

which hurt the rights of the vulnerable too have not been changed in India.

Take the Immoral Traffic Act. It allows the police to harass sex workers and

increase their vulnerability.

With the advent of HIV, the state has taken a progressive posture in the

formulation of policies on the rights of MSM to health and HIV.

Many public announcements form part of the National AIDS Control policy. But the

law has not been changed. This shows the double standards of the government and

is an impediment to effective intervention.

This, when serological data shows that HIV among MSM and gays (a few million,

according to NGOs and other agencies in this field) is rapidly spreading.

To top it, there has been no effective training of the judiciary or other law

enforcement agencies in HIV policy or the rights of the vulnerable. The state,

and more specifically NACO, has rarely come out in defense of its own policies

even when those working under them are targeted by the police and other

agencies.

(Ashok Rau Director, Freedom Foundation-India)