[Reader-list] Fw: URGENT: government response to Section 377

[Shilpa Phadke]

----- Original Message -----
>From: "PRISM New Delhi" <prism_delhi at yahoo.co.in>
>Date: Mon, 15 Sep 2003 13:52:13 +0530
>Subject: Fw: URGENT: government response to Section 377


> Dear friends,
>
> The Union Government, on the 9th of September, finally
> responded to the petition filed in the Delhi High
> Court by Naz Foundation (India) Trust, in 2001.  Naz
> has been represented in the case by the Lawyers
> Collective.   The government's response is cause for
> grave concern.  It has drawn upon familiar notions of
> `Indianness' and morality, denied violations of human
> rights and looked at law reform in an extremely
> regressive manner.   An open letter (pasted at the
> bottom of this email), to be sent to newspapers, has
> been drafted by PRISM and CREA, which seeks to respond
> to the position taken by the State on behalf of
> individuals and organizations. This effort is
> important to publicly counter what the government has
> said, as part of the larger objective of opposing
> criminalization of adult consensual sexual activity
> and raising awareness about issues relating to
> same-sex sexualities. We hope that you will add your
> name to the letter.  Please forward the letter to
> other individuals and groups.  Since there is an
> urgency about responding to the government's
> statement, we hope that you will respond latest by
> 12noon tomorrow, 16th September 2003.  (We have given
> below sections of the government's response).
>
> There is a meeting of all concerned groups on Tuesday,
> 16th of September, at 5pm at the Saheli office, above
> Deez Biryani, in the Defence Colony Flyover Market. We
> hope that you will be able to send a representative to
> this urgent meeting, where we plan to discuss what can
> further be done to counter the government's assertions
> and create public opinion in support of the rights of
> sexuality minorities.
>
> In solidarity,
>
> PRISM
>
> QUOTES FROM THE GOVERNMENT'S AFFIDAVIT
>
> Quoting the 42nd report of the Law Commission, the
> government claims that   "Indian society by and large
> disapproves of homosexuality and disapproval was
> strong enough to justify it being treated as a
> criminal offence even where the adults indulge in it
> in private."
>
> The proposed changes in law, the Centre said, "can
> well open the flood gates of delinquent behavior and
> be construed as providing unbridled license for the
> same".
>
> Justifying Section 377, the centre said: ''The purpose
> of section 377 of IPC is to provide a healthy
> environment in the society by criminalising unnatural
> sexual activities.''
>
> Replying to the petitioner's allegations that Section
> 377 violated the right to equality (Article 14), right
> to freedom (Art 19) and right to personal liberty (Art
> 21), the Centre said "none of these rights were
> infringed" and that each of them were subject to
> reasonable restrictions.
>
> The Government claimed that Section 377 of IPC has
> been basically used to punish child sexual abuse and
> to complement lacunae in rape laws and that it has
> rarely been used to punish homosexual behavior.
>
> The Government also questioned the NGO's locus standi
> to approach the court on this issue, saying "no one
> except those whose rights are directly affected by the
> law can raise the question of its constitutionality".
>
>
>
> Open Letter
>
> On 9th September, 2003, the Union Government filed an
> affidavit in response to a petition filed by the Naz
> Foundation (India) Trust before the Delhi High Court,
> asking the court to decriminalise private, consensual
> adult sexual behavior. The Government's response is
> cause for grave concern -  its position is in
> contravention to its role as the upholder of the
> fundamental rights of all citizens.
>
> The government affidavit supports Section 377 of the
> Indian Penal Code, which states that 'whosoever
> voluntarily has carnal intercourse against the order
> of nature with any man, woman, or animal, shall be
> punished with imprisonment for life or 10 years'.
> With respect to the arguments presented by the State,
> we, as concerned citizens and representatives of
> women's groups, child rights groups, human rights
> organisations, sexual minorities groups, and NGOs seek
> to clarify that:
>
> a) The State cannot deny that Section 377 violates the
> rights of Indian citizens. Section 377, in its present
> form, denies the right of sexual expression. Other
> than same-sex sexual acts, non-procreative
> heterosexual acts including oral and anal sex also
> fall under the purview of this law.  Moreover, Section
> 377 violates the right to life and liberty, the right
> to health and the right to equality before the law and
> freedom from discrimination for many sections of
> society such as gays, lesbians, bisexuals, transgender
> people and hijras. These people are affected by
> Section 377 on a day to day basis. The stigmatisation
> attached to their choices is so severe that they are
> disowned by their families, subjected to shock therapy
> by doctors, are brutally harassed by the police, and
> are unable to avail of legal redress against
> discrimination. Section 377 is also used by the police
> to threaten NGO workers who distribute condoms and
> impart safe sex education amongst, for instance, men
> who have sex with men - communities extremely
> vulnerable to the transmission of the HIV virus - with
> charges of abetment of and attempt to commit Section
> 377.
>
> b) By speaking the language of moral panic, the State
> is to seeking to draw attention away from these
> tangible human rights violations.  It is a
> fundamentally flawed logic that the government is
> using when it argues that legal reform cannot take
> place because `Indian society by and large disapproves
> of homosexuality'. The government cannot impinge upon
> the rights of citizens who fall outside its ideas of
> 'Indianness'. Indian culture is not monolithic; it
> cannot be used as an excuse for discrimination.
> Diverse sexual expression is a well-recorded part of
> India's history and of her culture. Moreover, our
> laws are meant to enshrine principles of justice that
> Indian society should abide by. If all laws were
> drafted on the basis of popular opinion, progressive
> legislations such as the anti-Sati and anti-dowry laws
> would not have been possible.
>
> (c) The deliberate and repeated assertion by the
> government that this petition will prevent the court
> from being able to protect children from sexual abuse
> is patently false. The petition is not seeking a
> repeal of Section 377, but merely a decriminalisation
> of consensual, private, adult sexual behaviour. Should
> the petition succeed, the state's ability to use
> Section 377 in child sexual abuse cases remains
> unaffected.
>
> As individuals and groups that support and affirm the
> rights of gay, lesbian, bisexual, hijra, and
> transgendered people, we demand that the government
> enable the protection by the law of all citizens,
> without discrimination based on gender or sexual
> orientation. Towards this end, there is an urgent need
> to decriminalise sex between consenting adults. It is
> not the business of government to decide what people
> choose to do with complete consent without infringing
> on the rights of any other citizen. It is the business
> of the government, however, to frame effective laws
> that prosecute heinous crimes such as child sexual
> abuse.
>
> The government has stated in its affidavit each of the
> fundamental rights are subject to 'reasonable
> restrictions'. Restricting the access of millions of
> citizens to proper health care, failing to address
> rampant discrimination on the basis of their sexual
> preference, failing to protect them from harassment by
> the police and criminalising their consensual sexual
> acts while hiding behind the fig leaf of protecting
> Indian culture, are not reasonable restrictions by any
> standards. We urge the government to reconsider its
> position, bringing it in line with the requirements of
> the Constitution of India with regard to Fundamental
> Rights of every citizen and with the Universal
> Declaration of Human Rights.
>