anti-caste

SECTION 377: FOUR YEARS LATER, INDIAN SUPREME COURT REINSTATES REACTIONARY, COLONIAL-ERA LAW AGAINST CONSENSUAL SEX ACTS

India’s Supreme Court turns the clock back with gay sex ban (Reuters)

“India’s Supreme Court on Wednesday reinstated a ban on gay sex in the world’s largest democracy, following a four-year period of decriminalization that had helped bring homosexuality into the open in the socially conservative country.

“In 2009 the Delhi High Court ruled unconstitutional a section of the penal code dating back to 1860 that prohibits ‘carnal intercourse against the order of nature with any man, woman or animal’ and lifted the ban for consenting adults.

“The Supreme Court threw out that decision, saying only parliament could change Section 377 of the penal code, widely interpreted to refer to homosexual sex. Violation of the law can be punished with up to 10 years in jail.

“The move shocked rights activists around the world, who had expected the court simply to rubber-stamp the earlier ruling. In recent years, India's Supreme Court has made progressive rulings on several issues such as prisoners' rights and child labor. [...]

“India’s Law Minister Kapil Sibal said the government could raise the matter in parliament. The government of Prime Minister Manmohan Singh was seen to broadly support the 2009 ruling, and some ministers said they opposed Wednesday’s rollback.

“But it seems unlikely the government will risk taking a stand on the issue in the short term. General elections are due by next May and the socially conservative Hindu nationalist opposition is already gathering momentum.

“India’s gay culture has opened up in recent years, although the country remains overwhelmingly conservative and sex outside marriage, even among heterosexual couples, is largely frowned upon. India’s first gay pride march took place in the eastern city of Kolkata in 1999 and only around a dozen people attended. [...]

“The 2009 judgmenthad allowed people to organize such events far more openly by protecting gay people from being fired because of their sexuality, and has meant that doctors could no longer refuse to treat homosexuals, activists say.”

See 2009 post on anti-caste:

REACTIONARY LAW CRIMINALIZING CONSENSUAL SEX ACTS IS "READ DOWN" BY DELHI HIGH COURT (July 3, 2009):

“The Delhi High Court has ruled that Section 377 of the Indian Penal Code, which criminalizes ‘carnal intercourse against the order of nature with any man, woman or animal,’ should not apply to consensual relations between adults.

“The decision that ‘penile, non-vaginal sex’ should not in itself be considered a crime is good news. While few were prosecuted under Section 377, a People's Union for Civil Liberties (PUCL) report noted that it has been commonly used ‘by the police mostly to victimize gay and bisexual men whom they catch in public areas to extort money and blackmail, despite the fact that blackmail and extortion are criminal offences. Section 377 has also been used to intimidate lesbian women, particularly in the cases of women who have run away together, or if they make their relationship known.’ The law is a direct legacy of British rule, having been introduced in 1861 by the colonial state.

“However, the social effects of this formal extension of democratic rights should not be overestimated. It is not suddenly ‘OK to be gay in India,’ as many headlines have suggested. No more than the article in the Indian constitution prohibiting ‘discrimination on the grounds of religion, race, caste, sex, or place of birth,’ on which the court’s ruling was based in part, has in fact removed such discrimination. Like the liberation of women and those oppressed by caste, real sexual freedom will require a profound reorganization of the material basis of society. It will take nothing less than the replacement of the family as an economic institution within a collectivized, socialist economy.

“Section 377 has not been repealed. It remains on the books and the court, as part of the same ruling, affirmed its application to cases involving people under eighteen. In a country where forced child marriage remains commonplace, young people are ‘presumed not to be able to consent to a sexual act.’”

And see on anti-caste:

CONGRESS-LED GOVT DEFENDS REACTIONARY, COLONIAL-ERA LAWS (September 27, 2008)

REACTIONARY LAW CRIMINALIZING CONSENSUAL SEX ACTS IS "READ DOWN" BY DELHI HIGH COURT

The Delhi High Court has ruled that Section 377 of the Indian Penal Code, which criminalizes "carnal intercourse against the order of nature with any man, woman or animal," should not apply to consensual relations between adults.

The decision that "penile, non-vaginal sex" should not in itself be considered a crime is good news. While few were prosecuted under Section 377, a People's Union for Civil Liberties (PUCL) report noted that it has been commonly used "by the police mostly to victimize gay and bisexual men whom they catch in public areas to extort money and blackmail, despite the fact that blackmail and extortion are criminal offences. Section 377 has also been used to intimidate lesbian women, particularly in the cases of women who have run away together, or if they make their relationship known." The law is a direct legacy of British rule, having been introduced in 1861 by the colonial state.

However, the social effects of this formal extension of democratic rights should not be overestimated. It is not suddenly "OK to be gay in India," as many headlines have suggested. No more than the article in the Indian constitution prohibiting "discrimination on the grounds of religion, race, caste, sex, or place of birth," on which the court's ruling was based in part, has in fact removed such discrimination. Like the liberation of women and those oppressed by caste, real sexual freedom will require a profound reorganization of the material basis of society. It will take nothing less than the replacement of the family as an economic institution within a collectivized, socialist economy.

Section 377 has not been repealed. It remains on the books and the court, as part of the same ruling, affirmed its application to cases involving people under eighteen. In a country where forced child marriage remains commonplace, young people are "presumed not to be able to consent to a sexual act."

It's unclear whether the ruling applies outside of the city of New Delhi. While the Delhi High Court is not a federal court and has no direct jurisdiction in other parts of India, there is a precedent for high court decisions to apply on a national basis. The decision may also have a broader influence on other courts and on the central government.

See also anti-caste: CONGRESS-LED GOVT DEFENDS REACTIONARY, COLONIAL-ERA LAWS (September 27, 2008)

POLICE IN BANGALORE ARREST HIJRAS AND SEXUAL-MINORITY-RIGHTS ACTIVISTS

Which is the real menace?: People whose bodies and sexualities put them beyond the pale of social norms are without rights in the eyes of Indian police by Dipika Nath (Guardian (UK))

"Early on October 20, Bangalore police arrested five hijras – a traditional cultural identity for working-class transgender people who, born as men, identify as women. Such arrests are sadly routine. Throughout India, many hijras cannot get identity papers: the state will not let them change their legal sex and denies them IDs if their appearance does not match their birth gender. As a result, they often cannot work, go to school, find jobs, vote, or even move around freely. Social prejudice against 'men' or 'women' who are not 'masculine' or 'feminine' enough makes them ready victims of violence.

"Denied viable opportunities for work, hijras are forced to resort to begging or demanding goodwill funds during marriage or birth celebrations. That way of life has been part of several regional Indian cultures, where blessings of a hijra were considered a good omen. But as these traditions erode, many hijras have had to survive as street beggars or sex workers. In both cases, police slap them with fines, jail them, sometimes physically or sexually abuse them."

See also:

India: Stop Abuse of Sexual Rights Activists (Human Rights Watch, October 29, 2008)

And see:

this encyclopedia article on hijras by Serena Nanda

CONGRESS-LED GOVT DEFENDS REACTIONARY, COLONIAL-ERA LAWS

Centre: Homosexuality is a reflection of a perverse mind (Times of India)

"Calling it a 'social vice' and 'a reflection of a perverse mind', the Central government on Friday opposed scrapping of Section 377 of Indian Penal Code even as it came under fire from Delhi high court for its affidavit which contains divergent stands as stated by the home ministry and health ministry.

See also:

Homosexuality to be curbed as it spreads HIV: Centre (Indian Express, December 7, 2008):

"Justifying criminalisation of homosexuality in the country, the Centre has pleaded before the Delhi High Court that it is one of the main reasons for spread of HIV/AIDS and needs to be curbed."

And see:

Why should homosexuality be a crime? (Times of India, September 18, 2003):

"Ironically, while the British drafted Section 377 of the IPC, replacing a tolerant Indian attitude towards sexuality with a highly oppressive one, this law was repealed in the UK in 1967."

UNWELCOME COMPETITION FOR HIJRAS IN GUJARAT

British transsexual leaves Indian eunuchs out of pocket (Independent (UK))

"Details of who exactly Pamela is are hard to come by, largely because she has been reluctant to talk to the press. Journalists reported that her birth name was Stephen Louis, and that she comes from London.

"'Some Gujaratis in London, noticing Stephen's eunuch-like body language and behaviour, helpfully told him about the Bahucharaji temple,' said Gunavant Joshi, a resident of the town where the temple is based.

"'Stephen then made a search on the internet on Goddess Bahucharaji, considered the goddess of eunuchs. He found all necessary information on the Net.

"'He even got a printout of the picture of the goddess and showed [it] to a tattoo artist and got a similar image tattooed on his left arm,' Mr Joshi said.

"'Pamela gets up early in the morning,' said the unnamed temple official. 'She attends all [ceremonies] in the temple. Also, she has become a pure vegetarian. She eats Gujarati food in the temple dinning hall.'"