Anti-AIDS activists are "regularly beaten, blackmailed, extorted, threatened, and sometimes even sexually assaulted..."
by Kelly Cogswell
NOVEMBER 22, 2002. One more colonial dinosaur may get the boot from India later this month if the Supreme Court there overturns Section 377 of the penal code. Already struck from the books decades ago in Britain, the 142 year-old law declares:
"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 ... for a term which may extend to ten years, and shall also be liable to fine ... Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section."
The law is used to harass lesbian, gay and transgendered people, as well as AIDS workers, often queer themselves. A report presented last year to the UN Commission on Human Rights by gay lawyer Aditya Bondyopadhyay, described how anti-AIDS activists are "regularly beaten, blackmailed, extorted, threatened, and sometimes even sexually assaulted and/or raped by policemen on duty." The law has also been used to thwart efforts to pass out condoms in jails.
Ashok Row Kavi, journalist and AIDS activist, told The Gully that a repeal would have a huge impact. "All that harassment and blackmail and extortion by cops ripping us off in loos and parks will stop." He noted, however, that it was only one step. Queers are also targeted under the 1959 Habitual Offender's Act, the evil stepdaughter of the brutal Criminal Tribes Act of 1871, technically repealed in 1951, as well as by the public nuisance sections of the Bombay and Delhi Police Acts.
"Under the first law, being born as, or becoming a member of, a particular tribe or caste including wagris, banjaras [ethnic groups], hijras [communities of male to female transsexuals, and people with intersex conditions] etc., you can be just arrested on a charge of 'anticipated antisocial acts.'
If you are a cross dresser or look suspiciously camp, you can be arrested under the police acts for being an 'anticipated creator of nuisance.' Have you heard of anything more ridiculous? Who but God and Indian cops can 'anticipate' who will commit an antisocial act or create a public nuisance?"
The law is also used against lesbians, but not by the police. The greatest risk to lesbians is from their own families. Ruth Vanita, a professor at the University of Montana and editor of Queering India, noted that the law was "invoked unsuccessfully by a father of a lesbian who eloped with her lover and the father of a transsexual woman (FTM) who married her woman lover."
Unfortunately, even a family's threat to invoke the law sometimes does end relationships, according to lesbian activist Giti Thadani. The threat has resonance because, although lesbians are rarely convicted under the law, the accused, male or female, are often refused bail for this offense and forced to remain in jail prior to trial. Even with an international outcry, three Lucknow AIDS workers arrested and charged under section 377 were held 45 days last year before being released on bail; another was held for seven months.
"Then there is the stigma attached to it as a sexual crime," added Thadani. When families use it to break up lesbian couples, especially young ones, "the psychological effects can be severe. In a few extreme cases, attempts by families to use the law directly or indirectly have resulted in double suicides."
While the outcome is uncertain, India's Supreme Court has signaled that the government must present a very strong case to preserve the law. "If two people of the same sex want to live together, it may be their own thinking," said the court at a preliminary hearing this summer.
For the complete Indian Penal Code.
For India's Denotified Tribes, the lingering effects of the criminal tribes law.
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