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Same-Sex Love in India: Open Letters against Section 377

To the Government of India, Members of the Judiciary, and All Citizens,

To build a truly democratic and plural India, we must collectively fight against laws and policies that abuse human rights and limit fundamental freedoms.

This is why we, concerned Indian citizens and people of Indian origin, support the overturning of Section 377 of the Indian Penal Code, a colonial-era law dating to 1861, which punitively criminalizes romantic love and private, consensual sexual acts between adults of the same sex.

In independent India, as earlier, this archaic and brutal law has served no good purpose.  It has been used to systematically persecute, blackmail, arrest and terrorize sexual minorities.  It has spawned public intolerance and abuse, forcing tens of millions of gay and bisexual men and women to live in fear and secrecy, at tragic cost to themselves and their families.  It is especially disgraceful that Section 377 has on several recent occasions been used by homophobic officials to suppress the work of legitimate HIV-prevention groups, leaving gay and bisexual men in India even more defenceless against HIV infection.

Such human rights abuses would be cause for shame anywhere in the modern world, but they are especially so in India, which was founded on a vision of fundamental rights applying equally to all, without discrimination on any grounds.  By presumptively treating as criminals those who love people of the same sex, Section 377 violates fundamental human rights, particularly the rights to equality and privacy that are enshrined in our Constitution as well as in the binding international laws that we have embraced, including the International Covenant on Civil and Political Rights.

Let us always remember the indisputable truth expressed in the opening articles of the Universal Declaration of Human Rights that “All persons are born free and equal in dignity and rights. . . Everyone is entitled to all the rights and freedoms set forth in this declaration, without distinction of any kind.”

We will move many steps closer to our goal of achieving a just, pluralistic and democratic society by the ending of Section 377, which is currently under challenge before the Delhi High Court.  There should be no discrimination in India on the grounds of sexual orientation.  In the name of humanity and our Constitution, this cruel and discriminatory law should be struck down.

Sincerely,

Vikram Seth, author; Swami Agnivesh; Soli Sorabjee, former Attorney-General; Aditi Desai, sociologist; Nitin Desai, former UN Under-Secretary General; Captain Lakshmi Sahgal, freedom fighter, Padma Vibhushan; Siddharth Dube, author

and

Rukun Advani, Author/Publisher

MJ Akbar, Editor-in-Chief, Asian Age & Deccan Chronicle
Ashok Alexander, Director, Avahan, Bill and Melinda Gates Foundation

Subashni Ali, President, All India Democratic Women’s Association
Arjun Appadurai, Provost and Senior Vice President for Academic Affairs, and John Dewey Professor in the Social Sciences, The New School for Social Research
Kanti Bajpai, Headmaster, The Doon School

Runa Banerjee, CEO, SEWA Lucknow
Kaushik Basu, Professor of Economics, Cornell University

Upendra Baxi, Professor of Law, University of Warwick

Pooja Bedi, Actress

Shyam Benegal, internationally-acclaimed film director and Member of Parliament, Rajya Sabha

Amita Baviskar, Associate Professor, Institute of Economic Growth
Prashant Bhushan, advocate, Supreme Court, and civil rights activist

Urvashi Butalia, author, publisher and activist

Uma Chakravarty, Vedic Scholar and Feminist Historian

Geeta Chandran, Founder President, Natya Vriksha

Purnendu Chatterjee, Chairman, Chatterjee Group

Gerson Da Cunha, Trustee, AGNI (Action for Good Governance and Networking in India)

Maja Daruwala, human rights activist

Nandita Das, award-winning actress and activist

Veena Das, Professor, Johns Hopkins University

PR Dasgupta, former secretary education and social welfare, first head  of the National AIDS programme
Mahesh Dattani, playwright, Sahitya Akademi Award 1998

Devika Daulet-Singh, photographer

John Dayal, Member, National Integration Council, Govt of India

Shobhaa De, best-selling author and columnist

Astad Deboo, choreographer & dancer
Armaity Desai, Former Director, Tata Inst. of Social Sciences & Former Chairman, University Grants Commission
Anil Divan, Senior Advocate

Darryl D’Monte, environmental journalist & author
Dilip D’Souza, author and journalist

JB D’Souza, former Maharashtra Chief Secretary and Bombay Municipal Commissioner (IAS retd)

Neela D’Souza, writer

Bharat Dube, Counsel, Richemont Group S.A.

Barkha Dutt, Managing Editor, NDTV

Mallika Dutt, Breakthrough, National Citizen’s Award 2001

Rajiv Dutta, President, Skype

Rehaan Engineer, actor

Naresh Fernandes, Editor, Time Out Mumbai

Meenakshi Ganguly, Human Rights Watch

Amitav Ghosh, author, Sahitya Akademi Award 1990

Sagarika Ghose, author, and Senior Editor, CNN-IBN

Shohini Ghosh, Filmmaker and Lecturer, Jamia Millia Islamia

Anand Grover, Human Rights Lawyer

Ramachandra Guha, Social Anthropologist, Historian

Satish Gujral, Artist, Sculptor

Ruchira Gupta, activist and Emmy-winning journalist

Syeda Hameed, Member of the Planning Commission

Zoya Hasan, Professor of Political Science, Jawaharlal Nehru University

Tanuja Desai Hidier, author and musician

Indira Jaising, Human Rights Lawyer

Ashok Jethanandani, editor, India Currents

Ruchir Joshi, writer

Sudhir Kakar, psychoanalyst and author

Mira Kamdar, author, Senior Fellow, World Policy Institute

Coomi Kapoor, Indian Express

Sanjay Kapoor, Vice President, Raytheon Integrated Defense Systems

Bachi Karkaria, Author and Columnist, Times of India

Girish Karnad, Playright, Actor

Soha Ali Khan, actor

Zila Khan, classical singer

Sunil Khilnani, Director of South Asian Studies, Johns Hopkins

Shanno Khurana, Classical vocalist, Padmabhushan, Fellow (Ratna Sadasya) Sangeet Natak Akademi

Saleem Kidwai, Historian and Co-editor, Same-Sex Love in India

Purab Kohli, Actor

Amitava Kumar, writer, Professor of English, Vassar College

Radha Kumar, author and professor, Jamia Millia Islamia

Jhumpa Lahiri, author, Pulitzer Prize 2000

Ruby Lal, Assistant Professor of South Asian Civilizations, Emory University

Rama Mani, Geneva Centre for Security Policy

Sonal Mansingh, acclaimed danseuse and Padma Vibhushan
Ajay K. Mehra, Director, Centre for Public Affairs

Suketu Mehta, author, Kiriyama Prize 2005

Nivedita Menon, Department of Political Science, Delhi University

Aziz Mirza, Filmmaker

Saeed Mirza, Filmmaker

Sophie Moochala, businesswoman

Shubha Mudgal, vocalist, Padmashree Award 2000

Mira Nair, internationally acclaimed film director

Ashish Nandy, political psychologist and sociologist

Kuldip Nayar, author and columnist

Derek O’Brien, author and television quiz master

Onir, film director, My Brother Nikhil
Pankaj Pachauri, Senior Editor, NDTV

Dileep Padgaonkar, former Chief Editor, Times of India, member of the Minorities Commission

Latika Padgaonkar, art and cine expert

Amol Palekar, Filmmaker

Gopika Pant, Partner, DSK Legal

Gyanendra Pandey, Distinguished Professor of Arts and Sciences, Emory Unviversity

Kirit Parikh, Member, Planning Commission

Vibha Parthasarathi, ex-Chairperson, National Commission for Women

Vibhuti Patel, journalist

Pradip Prabhu, Activist, Kasthakari Sangathan
Sanjay Pradhan, Director, Public Sector Governance, The World Bank

Rajeswari Sunder Rajan, Global Distinguished Professor (Elect), New York University

Rahul Ram, Indian Ocean band

Raka Ray, Professor of South Asian Studies, Univ of California, Berkeley

Debraj Ray, Julius Silver Professor of Economics, New York University

Aruna Roy, Mazdoor Kisaan Shakti Sangathan, Ramon Magsaysay Award 2000

Arundhati Roy, Activist and Author.  Booker Prize 1997
Sandip Roy, Editor, New America Media and Trikone Magazine

Sanjoy Roy, managing director, Teamwork Films

Sarika, Actress

Siddharth Dhanvant Sanghvi, Author

Mallika Sarabhai, dancer

Mrinalini V.  Sarabhai, dancer and choreographer, Padma Shree 1965, Padma Bhushan 1992

Rajdeep Sardesai, editor-in-chief CNN-IBN

Madhu Sarin, psychoanalyst

Sumit Sarkar, social historian

Tanika Sarkar, historian and Professor, Jawaharlal Nehru University

Vir Sanghvi, Anchor, Writer, and Editorial Director, Hindustan Times

NC Saxena, former Secretary Planning Commission and Rural Development, and Director, LBS National Academy of Administration

Aparna Sen, acclaimed director and actor

Atul Setalvad, Senior Advocate

Teesta Setalvad, Communalism Combat

Konkona Sen Sharma, actress

Malvika Singh, Publisher, Seminar

Dayanita Singh, photographer

Kirti Singh, Advocate and Women’s Rights Activist
Seema Sirohi, columnist

Sreenath Sreenivasan, Professor, Columbia Graduate School of Journalism

Vidya Subrahmaniam, Deputy Editor, The Hindu

Nandini Sundar, Professor, Delhi School of Economics

Admiral (Rtd.) R.H. Tahiliani, former Chief of the Indian Navy and Governor of Sikkim, Chairman, Transparency International India

Tarun Tahiliani and Sal Tahiliani, designers

Tarun Tejpal, editor and founder of Tehelka
Dolly Thakore, theatre personality

Tilottama Tharoor, Humanities Professor, New York University

Laila Tyabji, Chairperson, DASTKAR
Nilita Vachani, documentary-maker, President’s Award 1992

Ruth Vanita, author and professor, U of Montana

Siddharth Varadarajan, Deputy Editor, The Hindu
B.G. Verghese, former editor of several national papers, and human rights and development activist

Jafar Zaheer, Air Vice Marshal (retd, Param Vishist Seva Medal), and Mrs Rafath Zaheer

Shama Zaidi, script writer and film maker

(Listing of institutional affiliations does not imply that these organizations necessarily endorse this statement.)


Cambridge 20 August 2006

A Statement in Support of the Open Letter by Vikram Seth and Others

I have read with much interest and agreement the open letter of Vikram Seth and others on the need to overturn section 377 of the Indian Penal Code.  Even though I do not, as a general rule, sign joint letters, I would like, in this case, to add my voice to those of Vikram Seth and his cosignatories.  The criminalization of gay behaviour goes not only against fundamental human rights, as the open letter points out, but it also works sharply against the enhancement of human freedoms in terms of which the progress of human civilization can be judged.

There is a further consideration to which I would like to draw attention.  Gay behaviour is, of course, much more widespread than the cases that are brought to trial.  It is some times argued that this indicates that Section 377 does not do as much harm as we, the protesters, tend to think.  What has to be borne in mind is that whenever any behaviour is identified as a penalizable crime, it gives the police and other law enforcement officers huge power to harass and victimize some people.  The harm done by an unjust law like this can, therefore, be far larger than would be indicated by cases of actual prosecution.

It is surprising that independent India has not yet been able to rescind the colonial era monstrosity in the shape of Section 377, dating from 1861.  That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America.  Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization.

Amartya Sen


What Is Sec 377 IPC?

Sec 377 of the Indian Penal Code states:

“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 a term which may extend to ten years and shall also be liable to fine.  Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described.”

Passed in 1860, the law criminalizes sexual activity between consenting adults in private, thereby violating the fundamental and human rights of thousands of Indian citizens and legitimizing, in the eyes of the law and society, discrimination, violence, and social prejudice against gay, lesbian, bisexual, hijra communities, and other sexual minorities.

What Impact Does Sec 377 Have on the Lives of Sexual Minorities in India?

Sec 377 has become the sword that hangs over the lives of all sexual minorities in this country.  It not only prevents sexual minorities from being able to access justice, but has been used as a weapon to harass, extort, blackmail and threaten gay men and women.  It further casts a shadow of illegality on the personal lives of thousands, making them unable to live openly and with dignity, because even their families and well wishers point to the existence of the law to justify their prejudice and concerns.  It prevents adequate health services and especially HIV/AIDS prevention efforts within sexual minority communities.

Documented evidence shows that Sec 377 is used in several types of cases, for eg:

  • In 2001, police raided the offices of the Bharosa Trust in Lucknow, accusing them of running a “gay racket” and charging them with Sec 377 (120B) as “conspiracy to promote homosexuality” because the NGO worked on promoting safe sex practices with men who have sex with men.
  • In 2005, police arrested four men under Sec 377 for allegedly meeting other gay men and engaging in sodomy.  Fact-finding teams later established that the police had no evidence or eye witnesses and had simply arrested the men for being gay.
  • Given two years of drugs and electroshock therapy at the AIIMS in order to “cure” him of his sexuality, a man tried to approach the National Human Rights Commission, but his complaint was not admitted because of Sec 377.
  • Hijras are subject to brutal police violence, sexual abuse and assault, and extortion at the hands of the public as well as the police, as has been documented extensively by the members of the People’s Union for Civil Liberties, Karnataka.  They cannot complain against this abuse and are subject to it in the first place due to Sec 377.  The report can be found at www.pucl.org.
  • People belonging to sexual minority communities often face the threat of blackmail, extortion and disclosure — things they must fear because of the environment of homophobia that Sec 377 fosters and legitimizes.
  • Families, health professionals and others often cannot accept people’s sexual preference precisely because of the law.
  • Same-sex partnerships have no legal protection or recognition within the law due to Sec 377.  Discrimination in employment, benefits, inheritance, the right to visit one’s partner in hospital, legal guardianship and entitlement — all of which would be automatically granted to opposite-sex couples — do not exist for same-sex couples who must live their lives in an agonizing uncertainty.

What Is the Public Interest Litigation (PIL) Petition That Has Been Filed against Sec 377?

In 2001, the Naz Foundation filed a PIL in the Delhi High Court arguing that Sec 377 violated the constitutional rights of sexual minorities in India and also interfered with the provision of HIV/AIDS prevention services.  The petition asks for a reading down of Sec 377, which would de-criminalize consensual sex between adults of the same sex.  The High Court had dismissed the petition on a technicality in 2005, arguing that Naz had no locus standi, i.e., since no FIR had been filed, no PIL could be filed.  Lawyers Collective, representing the Naz Foundation, filed a special leave petition challenging the dismissal in the Supreme Court which, in February 2006, ordered the High Court to hear the caes of merits.  The case is currently, therefore, once again pending a hearing in the Delhi High Court, still waiting to be heard on its merits.

Sexual Minorities and the Law around the World

A minority of countries in the world continue to criminalize same-sex relations.  India remains one of them.

Increasingly, countries around the world are beginning, at the very lest, to de-criminalize homosexuality and further ban discrimination on the basis of sexual orientation and gender identity.  Many countries now guarantee sexual minorities full and equal civil rights, including marriage rights.  Canada, the Netherlands, Belgium, Spain, and the US state of Massachusetts allow full civil marriage on par with opposite-sex marriages.  A brief summary of recent developments around the world:

Europe

The Americas

Pacific

South Africa

Asia

  • In 1990, Hong Kong overturned its anti-sodomy law, one very similar to Sec. 377.
  • In 2002, the Department of Mental Health in Thailand removed homosexuality from its list of mental illnesses.
  • In 2003, the government of Taiwan announced plans to legalize same-sex marriage, which would make Taiwan the first Asian nation to do so.

Official and Institutional Declarations in India

Many official bodies in India have begun to speak out against Sec 377.  In recent years alone, there are three prominent examples of a call to remove Sec 377 form India’s law books.


The open letters are made public at <openletter377.com/>.  Information given below the open letters was provided by the press kit for the open letters.



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