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A ruling heard around the world
By Ahmar Mustikhan
June 30, 2003
As the U.S. Supreme Court strikes down the sodomy law in Texas on grounds of an
unconstitutional violation of privacy, half a world away in India, activists
are challenging their own anti-sodomy law in the Delhi High Court.
While one case may not directly affect the other, to Vikram, a journalist in
India's commercial capital Mumbai, who asked that his first name only be used,
the indirect effect is invaluable. "Judges read papers, lawyers read papers,
people read papers," Vikram says. "The steady drip-drip of tolerance on gay
issues will end up making a difference."
Anand Grover, director of the Lawyers Collective HIV/AIDS unit in New Delhi,
who is spearheading the drive against the Indian anti-sodomy law for Naz India,
a non-governmental organization working on HIV/AIDS, is arguing the case on
grounds of both privacy and equality for India's sexual minorities.
The controversial law, Section 377 of the penal code, makes sodomy or any kind
of "carnal intercourse against the order of nature with any man, woman or
animal" punishable by up to 10 years in prison.
Grover says that by criminalizing predominantly homosexual behavior, Section
377 drives same-sex relations underground, and creates societal conditions that
significantly impede HIV/AIDS prevention efforts.
The lawsuit contends that Section 377 is a major impediment to carrying out
HIV/AIDS intervention work with the "men who have sex with men" (MSM)
community. The officer in charge of a prison in Delhi once prevented condom
distribution on the grounds that it tacitly condoned sodomy.
"HIV/AIDS, in a horrible way, has helped the gay community by forcing the
government to accept that men are having sex with each other if it is to
prevent HIV from spreading," Vikram says.
Section 377 "didn't make it a crime to be gay, just to be caught in certain
sexual acts," Vikram says. But that distinction is often lost on authorities,
who abuse their power over gays through extortion, blackmail and even physical
and sexual abuse. As long as the law is in place, say rights groups, police
will continue the abuse in an atmosphere of impunity.
Some gay men in India worry that the controversy over Section 377 will focus
unwelcome attention on the growing but discreet gay scene in India. But Vikram
says, "We tend to forget the subtle negative effects of 377. The fact that
homosexuality is seen as illegal comes in the way of us being able to do so
many things." This could be as simple as having an official gay night at a
Bombay nightclub.
Aditya Bondyopadhyay, Asia Director of the International Lesbian and Gay Law
Association, says Anand Grover's petition on behalf of the Naz India is only
seeking an amendment of 377, which would still cover male rapes.
"Getting rid of 377 lock, stock, and barrel seemed unwise, since all studies
and data showed a law is needed in the books to protect males against rape and
sexual assault," Bondyopadhyay said by phone from Lucknow, India.
Interestingly, activists in India, as in the United States, are using the
courts to push for change instead of the legislature. However, despite three
notices by the Delhi High Court, the state has not filed any written response.
Bondyopadhyay says the strategy of not filing a reply is a time-tested method
of the state, which had successfully stalled in 1994 when a similar petition
was filed.
Bondyopadhyay is optimistic because the international "political reality around
sexual minority rights" is changing. Canada's decision to allow same-sex
marriages was highlighted above the masthead of the influential daily The Times
of India.
London-based international gay rights activist Peter Tatchell says Section 377,
a relic of British colonial rule, is the unfinished business of India's
emancipation struggle.
Tatchell adds, "India's current anti-gay laws were imposed by the British
colonial administration. The real Western import is homophobia, not
homosexuality." Though Britain struck its own anti-sodomy law off the books in
1967, it still exists in at least half a dozen of its former colonies, such as
Pakistan, Bangladesh, Sri Lanka, Malaysia and Singapore.
Activists in all these places will be watching events in Delhi. Whether the
reverberations of the Texas sodomy case will help them in their mission remains
to be seen. "But every change everywhere helps build up the momentum," said
Paula Ettelbrick, the executive director of the International Gay and Lesbian
Human Rights Commission in San Francisco. Recalling how activists in America
use gay rights in South Africa and gay marriage in Canada to push for change
domestically, Ettelbrick hopes that the U.S. Supreme Court decision, which set
out a text and rationale for gay equality, "can only help activists in places
like India who are also using the court process to overturn the law."
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