What is section 377?
Section 377 of Indian penal code was drafted as early as 1860. and it reads as follows.
"Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment which may extend to ten years, and shall also be liable to fine."
How is this section used?
Today this section is mostly used to harass people. Police use this section to blackmail and extract bribe from various gay communities.
Is there a petition filed to repeal this act?
The petition to repeal this act was drafted by Lawyers Collective HIV AIDS unit on behalf of NAZ foundation in December 2002. This petition was rejected by Delhi High Court in Sept 2004. In April 2005, this case came up in Supreme court before a bench headed by Justice Sabharwal. They saw reason to remand the case back to the Delhi High Court, that is where it stands today.
What events led to this petition?
On 7 July 2001, police raided a park in Lucknow that was frequented by the MSM (men who have sex with men) community. The raid led to the arrest of an outreach worker of the Bharosa Trust, a NGO working with the MSM community in the area of HIV/AIDS prevention. The police also raided the offices of Bharosa and Naz Foundation and seized materials from there, arresting nine people in all. The media sensationalised the arrests, describing the police action as the busting of a sex racket. The arrested persons were remanded to judicial custody on 8 July 2001; and were charged with section 377 they were allegedly beaten up and their offices sealed.
What are the main arguments to repeal this act?
- It violation of the right to life as a result of HIV/AIDS prevention work being impeded, and the MSM (Gay) community going underground, i.e., refusing to publicly avail of HIV-prevention options such as condoms, out of fear of being arrested
- this law's proscription of "non-procreative sexual activity" violates the right to life because a person's sexual preferences are an inalienable component of this right.
- It enables and perpetuates social stigma and police abuse
- Section 377 has been applied to cases of assault where bodily harm is intended and deletion of the said section can well open the floodgates of delinquent behaviour and be misconstrued as providing unbridled license for the same
- Section 377 reveal that it has been basically used in India to punish sexual abuse of children and to complement lacunae in the rape laws
Which organizations are working towards repealing this act?
Naz Foundation, Delhi, is working with Lawyers collective in spearheading this petition. There is a forum of NGOs, called "Voices against 377" who are actively supporting this petition. In addition this petition gained a wide scale publicity and support, with the open letter written by Vikram Seth to repeal this act. This letter was supported by people like Amartya Sen, Pooja Bedi, Shyam Benegal
