Posted on Saturday, July 11th, 2009 at 4:36 pm
Author: Feature Writer
Gc contributor: Allison McCarthy
Section 377 of the India Penal Code is no more, at least for now. The former law criminalized LGBTQ Indian citizens and sex workers for acts of sodomy, thus restricting these groups from receiving critical access to HIV/AIDS testing and services, as well as reporting hate crimes committed against these communities. Last week, Chief Justice Ajit Prakash Shah and Justice S. Muralidhar proclaimed that Section 377 is a violation of Article 21 of the nation’s Constitution, which maintains that every citizen possesses life and liberty in a court of law. Sexual acts defined as ‘sodomy’ are now legal when engaged by consenting adults, although it remains criminal for adults to do so with minors.
But not all are pleased at the outcome of this milestone ruling. On Thursday, astrologer Suresh Kumar Koshal and Dr. Mukesh Kumar Koshal submitted a Special Leave Petition (SLP) to India’s Supreme Court. India’s national newspaper, The Hindu, reported that the men are “deeply hurt by the judgment ‘inasmuch as it seriously affects them and fellow countrymen in all spheres of their lives, personal as well as social.’ A rampant increase in homosexual movement after the impugned order could not be ruled out.”
You heard it here first, folks: an astrologer has a bigoted prediction! Heterosexual privilege demands that lesbian, bisexual, transgendered, gay, and queer individuals suppress expressions of sexuality and gender to maintain the sociopolitical power granted to heterosexuals for reinforcing societal norms. These men will not risk unemployment, lack of healthcare, social ostracizing, or violent harassment due to their sexual orientation or gender expression. The only ones who will be hurt by discriminatory laws are those being classified as “Other.”
As if that weren’t enough, the men also claim that the law’s demise will lead to the spread of HIV/AIDS, “as it has been amply proven that the infection was contracted through such sexual acts. We have to look at our own scriptures to seek guidance and they are against such behaviour in our society. If such abnormality is permitted, then tomorrow people might seek permission for having sex with animals.”
Comparisons of homosexuality to bestiality are hardly new, but the health and well-being of India’s sex workers and LGBTQ citizens rests precariously in the balance of such accusations. In 2008, India’s National Aids Control Organisation (NACO) reported that nearly 2.3 million of India’s population is HIV-positive. NACO also notes that those who are open about their HIV-status have “faced violent attacks, been rejected by families, spouses and communities, been refused medical treatment, and even, in some reported cases, denied the last rites before they die… People in marginalized groups – female sex workers, hijras (transgender) and gay men – are often stigmatised not only because of their HIV status, but also because they belong to socially excluded groups.”
Section 377 was also a clear byproduct of nineteenth-century British colonialist legislation. In an article for IPS News, Nergui Manalsuren notes that Section 377 was “the first colonial ‘sodomy law’ integrated into a penal code, and it became a model for countries across Asia, the Pacific Islands and Africa — almost everywhere the British imperial flag flew.” The former code, drafted in 1860 by Thomas Babington Macaulay, decreed: 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 term which may extend to ten years, and shall also be liable to fine. Colonialist rule has significantly altered the economic, social, and political power granted to India’s populations. Striking down colonialist-era laws signifies a shift in power from British rule and should be commended as a progressive step toward full national sovereignty.
Many in India are, in fact, celebrating the law’s demise. The global organization Human Rights Watch hails the decision as “a victory for basic rights to privacy, non-discrimination, and liberty,” as well as pleading for the Indian government to “move quickly to scrap Section 377 nationwide, and to replace it with laws that would provide full, gender-neutral protection for children and adults against sexual abuse and assault… which leave many adults and children… unprotected.” NGO group Naz India “heartily welcome this verdict, which shows respect for human rights – irrespective of one’s sexuality or sexual orientation.” The group is devoted to providing awareness and services focused on HIV/AIDS and sexual health in India. Naz India filed the initial Public Interest Litigation (PIL) against Section 377 in September 2001.
Section 377 is an outdated, discriminatory law which endangers the lives of India’s LGBTQI citizens and the nation’s sex workers. To preserve the civil rights of all, Section 377 should not be reinstated, but remembered as a reflection of gross tyranny which criminalized sexuality. As the nation’s many and various movements for equality advance, India must not be held back by the stubborn heterosexual and colonialist privileges of the past.
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