GayBombay: India: 'Sodomy' Laws Perpetuate Colonial Prejudices

India: ‘Sodomy’ Laws Perpetuate Colonial Prejudices

Courts Should Decriminalize Adult, Consensual Same-Sex Acts

June 14, 2009

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“Why would a country that prides itself on being the world’s largest democracy keep laws on the books that blatantly violate human rights? And why would a nation with a thriving civil society, including a vibrant LGBT human rights movement, hold on to colonial morality codes?”

Dipika Nath, Researcher for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch

(Delhi) - As the High Court in Delhi prepares to rule on whether adult, consensual homosexual conduct should continue to be illegal in India, the nation's new government should drop its opposition to law reform, Human Rights Watch said today. The organization today issued the Hindi translation of a report documenting how the majority of the world's "sodomy laws" are outworn relics of British colonial rule.

The 90-page report, "This Alien Legacy: The Origins of "Sodomy" Laws in British Colonialism," details how Section 377 of the Indian Penal Code (IPC), which criminalizes "carnal intercourse against the order of nature" with up to life imprisonment, was imposed on India by the British as an instrument of social control. Human Rights Watch called on Indian authorities to support reforming the discredited provision. It also called on other governments retaining these archaic laws to move quickly toward their abolition. By criminalizing adult, consensual same-sex acts, Section 377 violates individuals' fundamental rights to privacy and freedom from non-discrimination.

"Why would a country that prides itself on being the world's largest democracy keep laws on the books that blatantly violate human rights?" said Dipika Nath, a researcher for the Lesbian, Gay, Bisexual, and Transgender (LGBT) Rights Program at Human Rights Watch. "And why would a nation with a thriving civil society, including a vibrant LGBT human rights movement, hold on to colonial morality codes?"

Indian LGBT rights organizations in Kolkata, Chennai, Mumbai, and Bangalore have organized discussions and events around the report and the High Court case between June 12 and June 25, 2009. The groups organizing the events are: Pratyay Gender Trust and Sappho for Equality in Kolkata; the Shakti Center in Chennai; LABIA in Mumbai; and Alternative Law Forum, Sangama, and LesBiT in Bangalore. The Delhi High Court is expected to deliver its ruling on the case this summer.

The Indian Penal Code was the first comprehensive criminal code Britain drafted for its colonies; it served as a model for similar codes forced on jurisdictions throughout the British Empire. Versions of Section 377 also served as the model for similar laws across Asia and Africa. A majority of the countries that continue to criminalize adult, consensual same-sex relations inherited these laws from their colonizers, though several now claim them as a part of their pre-colonial tradition and national identity.

In the Delhi High Court case aimed at decriminalizing homosexual conduct, the Indian government has claimed that sodomy laws defend traditional cultural values. In stark contrast to these assertions, the Human Rights Watch report shows that homophobic laws, not homosexual conduct, are a Western import. Colonial morals laws categorized entire classes of people, such as hijras (working-class, male-to-female transgender individuals), as "criminal tribes" who could be arrested simply for appearing in public.

"Section 377, like its sibling laws in other formerly colonized countries, is a legacy of British rule," Nath said. "It is disturbing that post-colonial democratic states like India treat these undemocratic, discriminatory laws as traditions, not impositions."

Moreover, Section 377 and other British-era sodomy laws make no distinction between consensual and non-consensual sex, or between sex among adults and sexual abuse of children. As a result, these surviving laws leave many rape victims and child victims of abuse without effective legal protection.

A 2001 fact-finding report by the People's Union for Civil Liberties-Karnataka found that police use Section 377 to blackmail gay and bisexual men, to detain individuals illegally, and to intimidate lesbians and other women in same-sex relationships. The petitioners in the ongoing case in the Delhi High Court have also argued that Section 377 is used to harass and abuse HIV/AIDS workers and particularly to target members of already-marginalized communities, such as hijras.

In 1994, the UN Human Rights Committee - which authoritatively interprets the International Covenant on Civil and Political Rights (ICCPR) - held that sodomy laws violate the rights to privacy and to non-discrimination.

"From Malaysia to Uganda, governments use these laws to harass civil society, restrict freedom of speech, discredit political enemies, and destroy lives," Nath said.

Colonies and countries that retain versions of this British sodomy law include:

· In Asia and the Pacific: Bangladesh, Bhutan, Brunei, Burma, India, Kiribati, Malaysia, Maldives, Marshall Islands, Nauru, Pakistan, Papua New Guinea, Singapore, Solomon Islands, Sri Lanka, Tonga, Tuvalu, and Western Samoa. (Governments that inherited the same British law, but have abolished it since include: Australia, Fiji, Hong Kong, and New Zealand.)

· In Africa: Botswana, Gambia, Ghana, Kenya, Lesotho, Malawi, Mauritius, Nigeria, Seychelles, Sierra Leone, Somalia, Swaziland, Sudan, Tanzania, Uganda, Zambia, and Zimbabwe.

Eleven former British colonies in the Caribbean also retain sodomy laws derived from a different British model than the one imposed on India.

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