The South and Southeast Asia Resource Centre on
Sexuality hosted this discussion on 20 February 2007, 4:00 – 7:00 pm, at Alliance Française de Delhi, 72,
Lodi Estate, New Delhi.
panel was centered on the kinds of penalization of the nature of
Section 377 of the Indian Penal Code (IPC) 1860, which makes illegal
‘carnal intercourse against the order of nature’ thus:
“377. Unnatural Offences.
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.”
The law penalises certain sexual acts equally. For example oral
sex, regardless of whether it is heterosexual or homosexual; even
penile-masturbation of one person by another, is considered
criminal. Although facially neutral, the law has effectively
stigmatised and criminalised a section of people more than others,
namely same-sex desiring people, including those who identify as
lesbian, gay, bisexual and transgender (LGBT), hijra, kothi and
other queer people.
focussed on some of the streams and segments of human rights that
challenge similar such penalisation.
Speakers included: (i) Arvind Narrain, a lawyer
with and founder member of the Alternative Law Forum, based in
Bangalore, India; (ii) Pramada Menon, Director Programs, Creating
Resources for Empowerment in Action (CREA), an NGO based in Delhi,
India; (iii) Robert Wintemute, Professor of Human Rights Law in the
School of Law, King’s College, University of London, where he
teaches European Union Law, Human Rights Law, and
Anti-Discrimination Law. Vrinda Grover was the chief discussant at
the panel. She is a lawyer based in Delhi, India. More information
about the speakers the chief discussant is available at the end of
this report. Xiaopei He, Director, The South and Southeast Asia
Resource Centre on Sexuality was the Chair.
speaker made a presentation of about 20 minutes. Robert Wintemute
spoke about international and comparative law on penalisation of
same-sex sexual activity, and the importance of interventions by
LGBT and other non-governmental organizations (NGOs) in human rights
cases before the courts. He focussed on judicial protection of human
rights, as opposed to the possible role of legislators. Legislators,
he said laughingly, often don’t like to talk about sex. He gave
examples of the case law from the European Court of Human Rights
(Dudgeon v. UK, Norris v. Ireland, Modinos v. Cyprus), the US
Supreme Court (Bowers v. Harwick), United Nations Human Rights
Committee (Toonen v. Australia), etc. He then shared from his
involvement in the Yale Law School's intervention in Lawrence v.
Texas (2003) in the US Supreme Court. He highlighted the potential
of agencies like Universities, NGOs, etc in playing a supportive
role in the judicial decriminalization. Please
click here for a copy of his write up.
Narrain spoke about how the challenge to Section 377 has emerged
as one of the key objectives of the ongoing queer struggle in India.
He located the challenge to the law as a part of the emergence of a
politics based on gender identity and sexual orientation towards the
last decade of the 20th century – in India. He also reflected on
what the challenge to the law means for bringing about a change in
the attitudes of Indian society, to queer sexuality; and also what a
change in the law would mean for queer people. He spoke of the
liberatory potential of queer ideology in challenging state control
over sex. He referred to a range of quotations from George Orwell to
EM Foster to B.R. Ambedkar and put it in the context of cross caste
love marriages in India. He concluded that the opposition to Section
377 should embody a wider social and political struggle against the
oppressions of caste, class and gender. The opposition to Sec 377
has to be legal, ethical, social and political. Please
click here for a copy of his write up.
Menon reflected on some of the issues around the penalisation
from a gender perspective. Amidst other aspects, she commented on
the apparent invisibility of same-sex desiring women, whether they
call themselves lesbian or not. Ironically, she said there have been
recent moves to highlight the plight of women in the ongoing
litigation challenging the penalisation in India. She expressed an
apprehension that perhaps courts were a less-than-desirable space
for this visibility. The case law shows that only men have been
convicted so far. She raised concerns over the potential risk of
bringing women into the judicial discourse when they have not really
been a direct subject of Section 377.
the chief discussant, Vrinda Grover commented briefly on
Wintemute, Narrain and Menon, and posed some issues for
clarification and discussion. For example, commenting on the
liberatory potential of queer ideology, as outlined by Narrain, she
said that this conceptualisation required further
problematisation and much would depend on the praxis of
politics adopted by the queer movement. She observed that the
experience of the women's movement showed that courts were only
one of the multiple sites of change. She also posed the query
whether the present framework of international human rights was
adequate or another paradigm is to be evolved to address
the myriad issues raised by the queer movement.
The discussion was attended by about 50 people.
These included journalists and media correspondents; some staff
members of organisations like the International Planned Parenthood
Federation (IPPF), Global Campaign for Microbicides (of PATH), Nigah
Media Collective, Butterflies, Aman Trust, Kriti, The Ford
Foundation, and CREA; a freelance photographer; few lawyers; and
some students from educational institutions like the Jawaharlal
Nehru University (JNU), the School of Planning and Architecture
(SPA), the Lady Sri Ram (LSR) College, the University of Durham, UK,
University of California, Irvine, USA, and the University of Delhi.
Comments, questions and general discussion
followed. There were queries into the current location of the ‘lesbian
and gay movement’ in India, the ongoing litigation in the Delhi
High Court challenging the Constitutionality of Section 377, the
potential risk in ‘sexual liberation’, etc.
Sumit Baudh, Senior Programme Associate,
The South and Southeast Asia Resource Centre on Sexuality, who
organised the event, offered a vote of thanks to the speakers, chief
discussant, chair, audience and all the people who helped in
organising the event, especially the TARSHI staff. The programme was
followed by tea/coffee and light snacks in the lawns outside giving
people an opportunity for informal discussions.
More about the Speakers:
Arvind Narrain is a lawyer with and
founder member of the Alternative Law Forum, which is a collective
of lawyers who work on the human rights of disenfranchised groups
and communities be it on grounds of gender, class, caste or
sexuality. As part of the specific work on queer rights he has
worked closely with the People’s Union of Civil Liberties -
Karnataka (PUCL-K) and come out with a report on the human rights
violations against sexuality minorities and the transgender
community. The report of 2001 highlighted human rights violations
against sexuality minorities; and the 2003 report specifically
looked at human rights violations against the transgender community.
He is also the author of Queer: Despised Sexualities and Social
Change and co-editor of Because I Have a Voice: Queer Politics in
Pramada Menon is Co-Founder and Director
Programs, CREA, a women’s human rights organization working on
issues of sexuality, violence against women, and, social justice.
She has worked for over two decades on gender, sexuality and human
rights as an activist and trainer – nationally and
internationally. Pramada has worked extensively with community based
organizations and coalitions to advance sexual rights in India. She
is on the Advisory Council of The Global Fund for Women.
Professor Robert Wintemute is the author
of Sexual Orientation and Human Rights: The United States
Constitution, the European Convention, and the Canadian Charter
(Oxford University Press, 1995/1997), and the editor (with honorary
co-editor Mads Andenæs) of Legal Recognition of Same-Sex
Partnerships: A Study of National, European and International Law
(Oxford, Hart Publishing, 2001). He has drafted interventions by
LGBT and other NGOs in the European Court of Human Rights (adoption
of children by lesbian and gay individuals, and recognition of
unmarried same-sex couples), and the Massachusetts Supreme Judicial
Court (equal access to legal marriage for same-sex couples), and
served as Co-President of the largest-ever International Conference
on LGBT Human Rights, 1st World Outgames, Montreal, 26-29 July 2006.
He assisted with Yale Law School's intervention in Lawrence v. Texas
(2003), which the US Supreme Court cited in its decision to strike
down the "sodomy" laws that remained in around 13 states.
Vrinda Grover is a lawyer. She has
represented diverse clients, including, survivors of sexual and
domestic violence, communities affected by communal, custodial
violence, trade unions, political activists, undocumented migrant
workers and refugees. She has been active in the women’s movement
and has participated in the campaigns and drafting of laws relating
to the Prevention of Domestic Violence law, the Bill on sexual
harassment at the workplace, the reformulation of the sexual assault
law and critique of the Communal Violence Bill, 2005. She is a
founding member of the Citizens Campaign for Preserving Democracy,
and a member of the All India Committee Against Death Penalty. She
is on Advisory Board of the India Campaign for an International
Criminal Court and a Board Member of the Centre for Social Justice,