This blog draws our attention to a key document, published in the 1990s in India, on the need to uphold the rights of sexual ‘minorities’ in general and lesbian rights in particular. It marked a significant moment in relation to recognizing the importance of the issue of sexuality in contemporary debates on Indian grassroots feminist activism related to welfare. The document was a memorandum submitted on 26 February 1999 by a group called ‘The Campaign for Lesbian Rights’ (CALERI), to the Committee on the Empowerment of Women in India. It was included in CALERI’s inaugural manifesto entitled ‘Lesbian Emergence’.

The Campaign for Lesbian Rights was a Delhi-based coalition of organizations and individuals who argued that discrimination on the basis of sexuality is a denial of basic human rights. The subject of the memorandum was ‘Repeal of Section 377 of the Indian Penal Code’. It was on the appraisal of (criminal) laws relating to women in India. The key submission of the memorandum was to render Section 377 of the Indian Penal Code (IPC) obsolete; a section that led to the criminalization of homosexuality in India. The following were the key arguments made by the group in this regard.

First, it argued that the Law Commission had passed this law against homosexuality in the year 1937 with no real and serious (public or parliamentary) discussion on the issue. Consequently, its passing was the result of an unplanned and hurried decision. It also suggested that the Section criminalizes women engaging in consensual homosexual relationships. As a result of this, these women have also been the victim of several welfare-related inequities like losing access to employment, losing jobs, losing their right to housing and to family property. These women have also been coerced into sexual and marital relationships and heckled and assaulted because of this draconian Section of the IPC. The memorandum then contended that consensual sexual relationships between consenting adults should not come under the purview of criminal law.

Second, the memorandum pointed out that Section 377 of the IPC criminalizes sodomy (homosexual or heterosexual) while simultaneously not identifying homosexual identity as an offence per say. However, this act of criminalization has led to the ubiquitous criminalization of gays, lesbians, and bisexual couples. This, once again, has led to the denial of welfare and rights to these communities.

Third, the memorandum drew our attention to how several court cases testify to the fact that right to privacy is an integral and essential part of Right to Life, as enshrined by Article 21 of the Indian Constitution.

Fourth, the memorandum also highlighted that the right to privacy has been upheld by both the Universal Declaration of Human Rights (Article 12) as well as by the International Convention on Human Rights 1948.

Fifth, the Indian Penal Code, it further argued, was drafted in 1833 and was based on the simple codification of the law of England. However, as the memorandum brought to our attention further, a prolonged campaign launched in the 1950s and 1960s in the UK aimed at decriminalizing homosexuality; a movement that finally led to the decriminalization of adult homosexual acts that are private and consensual in Wales and England via the Sexual Offences Act 1967. Consequently, as the group maintained, it is time that Section 377 of the IPC too is re-evaluated.

Sixth, the memorandum also highlighted the fact that Singapore, Malaysia, Pakistan, and India are the only former colonies in Asia that continue to have laws criminalising consensual sodomy between adults.

Seventh, it pointed out that supranational humanitarian organizations like Amnesty International for example, have also been vehemently against the curbing of the rights of gays and lesbians in recent years.

Eighth, the memorandum steered our attention towards Article 14 of the Constitution of India which is pegged to equality before law. The Article states that ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’ And since Section 377 of the IPC discriminates on the basis of one’s sexual orientation, it contradicts Article 14.

Ninth, the memorandum also stressed that both the World Health Organisation and the American Psychiatric Association identify male and female homosexuality as normal behaviour.

Tenth, the memorandum drew from the Kinsey Report on Human Sexuality published in 1948 and 1953 which suggested that millions of individuals all over the world have been exclusively homosexual for a considerable part of their lives.

Eleventh, the memorandum also underscored that homosexuality is not a western import (as is often argued by individuals who wish to criminalise homosexual behaviour). Rather, it is the criminalization of homosexuality which is a direct import from the West. It gives the example of ancient Indian sculpture and art to argue the prevalence of homosexuality in ancient India.

Twelfth, the memorandum gives the example of a key ancient Indian Sanskrit text on sexuality titled Kamasutra to argue that ancient India gave a significant amount of premium on and celebrated homosexual behaviour.

Thirteenth, the memorandum draws from Article 25(1) of the Indian Constitution which concerns the upholding of the Freedom of Conscience of the individual. The group argued that to be able to choose one’s sexual orientation is an integral aspect of an individual’s freedom of conscience.

Given the background of these arguments, the following were the specific demands put forth by The Campaign for Lesbian Rights:

1. 1. Repeal of Section 377: The first key demand of the group was to repeal Section 377 as it violated the legal and fundamental rights of an Indian citizen, as enshrined by the Constitution of India.

2. Redefine Sexual Violence and Rape in the IPC: The second key demand of the group was to redefine sexual violence and rape in the Indian Constitution, to include all coercive and non-consensual sexual acts. They also demanded that the law on rape should be applicable to both women and men, irrespective of whether the act was homosexual or heterosexual.

Footnotes

[1] The material and documents on this platform are licensed under Creative Commons Attribution-Non-Commercial India 2.5 license.

References

 The Campaign for Lesbian Rights, 1999. Lesbian Emergence: The Campaign for Lesbian Rights. Available at: http://feministlawarchives.pldindia.org/?s=caleri