Dormant Anti-Gay Laws Are Still Bad Anti-Gay Laws
Raju Narisetti -
Monday, August 25, 2008 9:25 AM
A recent Romantic Realist blog on gay rights in India titled Words Mean Little When It Comes To Gay Rights in India (Read it here) as well as a recent Mint editorial on the topic Homosexuality Is Not A Crime (Read it here) generated two very contrasting comments from readers.
"I read the article on Homosexuality in Live Mint and wanted to post this view. I am a student at the Kennedy School of Government at Harvard University and received the Traub-Dicker Fellowship to research gay rights in India. Section 377 of the Indian Penal Code, which criminalizes homosexuality, is unconstitutional. Article 21 of the Indian Constitution guarantees the right to personal liberty. Furthermore, the law is a remnant of British colonialism and remained on the books after 1947. The law has been used to bribe, threaten and extort money from the gay community, while also hindering efforts to stem the spread of HIV and AIDS in the gay community. As India wrestles with issues that surround modernity, there is no reason to revisit the homosexuality question. Numerous examples can found in Hindu texts that describe same sex love. That India would even need to wonder if tolerating and allowing for same sex marriages is a throw back to colonial times." Sheila B. Lalwani Harvard University, Traub-Dicker Fellow.
"You have blogged about a law against gays. It is an exaggeration to claim that this law in today's context is used to discriminate against gays unless you can show that the cops actually use this law to harass gays. This law exists because it was put in place by the British and no one has bothered about removing it.
There are thousands of such laws and the Americans have got it right. They are not going to waste their time on reviewing such laws until someone is actually injured by it and challenges the law. It is a waste of public resources to go about digging into laws that were framed 150-200 years ago. Laws should not be reviewed just to please activists who can then lobby for some prize with the Westerners. Let an injured party challenge the law and overturn it. That is the way to go. So if the law *is* used to harass gays, a harassed person needs to challenge the existence of the law and get rid of it.
The key is that there should be an INJURED party. And, I am no armchair theorist. I serve on the board of an organization that has filed a lawsuit challenging the content of textbooks in California (see
www.capeem.org) and have come to appreciate this point on an injured party filing the lawsuit. Otherwise, you will open a can of worms and thousands of laws will be challenged by all and sundry who want their 15 minutes of fame." Arvind Kumar
I am by no means an expert on this issue but I clearly have the sense, just as Ms Lalwani does, that even if the police aren't formally using Section 377 in India, the very threat of prosecution has given a lot of police the opportunity to selectively harass, threaten and blackmail alleged homosexuals. While Mr Kumar is indeed correct in noting there don't seem to be formal "injured" parties--there have been virtually on convictions on Section 377 in years--the very fact that such an outdated law exists gives the police the power to victimize homosexuals. Indeed, Human Rights Watch and others note that the law is sometimes used to stop HIV/AIDS prevention efforts in India (See more details on the issue here)
The larger issue is the need to raise awareness and build more tolerance in the Indian society. But it is clearly time to repeal Section 377 of the Indian Penal Code even if it is not being formally enforced.