etters against Section 377 by Vikram Seth, Amartya Sen et. al.

[Guest guest]

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

by Vikram Seth, Amartya Sen, et al.

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 , 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 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, s 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

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, s 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

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. (See the map).

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

• Nine other countries in Europe, including Germany, France, UK,

Denmark, Norway, Finland, and Iceland, allow same-sex domestic

partnerships and civil unions.

• The European Union requires all member states to prohibit

discrimination based on sexual orientation in employment.

The Americas

• Ecuador prohibits discrimination based on sexual orientation in

its Constitution. Several states and city governments in Brazil

prohibit discrimination on the basis of sexual orientation. Mexico

in 2003 passed comprehensive legislation prohibiting discrimination

based on sexual orientation.

Pacific

• Australia and New Zealand both prohibit anti-gay discrimination by

law.

• Since 1998, Fiji has banned discrimination based on sexual

orientation in its Constitution.

South Africa

• The South African Constitution prohibits discrimination on the

basis of sexual orientation and protects the rights of same-sex

couples. In December 2005, it declared that it was unconstitutional

not to allow gay people to marry.

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 172nd report of the Law Commission of India recommends that

Sec 377 be deleted.

• In the recommendations for the 11th Five Year Plan, the Planning

Commission of India proposed the deletion of Sec. 377.

• In its draft bill reforming laws on sexual assault, the National

Commission for Women has also recommended de-criminalizing

consensual same-sex sexual activity.

____________________________

The open letters are made public at http://www.openletter377.com/

and additional information is from

http://mrzine.monthlyreview.org/india160906.html