Dr. Avnish Jolly:South Asian region is going through an attitudinal change towards notions of gender and sexuality. In a recent democratic development in South Asia, Nepal became the first country elect an openly gay man working for the rights of lesbian, gay, bisexual and transgender and intersex (LGBTI) people as its representative in the Constituent Assembly.
This election followed another historic first by a South Asian country — a decision by the Nepali Supreme Court recognising LGBTI people as persons before the law.
Attitudes towards LGBTI persons in our society stand governed by a British Laws — Section 377 of the Indian Penal Code 1860. The section punishes “carnal intercourse against the order of nature” with the maximum punishment being life imprisonment.
The uphill task with Judiciary and struggled to decide the cases related to this issue since 1860 is to determine what exactly “carnal intercourse against the order of nature” depicts. The notion of sex without the possibility of conception in a society where recreation is a religious duty has been rendered a criminal offence under Sec 377 of the IPC. It has been used by the Judiciary and Society over the last around 150 years to characterise a homosexual as a unlawful example of human race and homosexuality as a objectionable crime, perversion, result of a headstrong mind and abhorred by civilised society.
In the light of Social Development, Human Rights and Jurisprudence under the Indian Constitution, Judicial understanding of Sec 377 has remained unaffected. The right to equality, the right to dignity or the right to expression have never been seen fit to apply to lesbians, gay, bisexuals, Eunuch (Hijras) or others whose sexual orientation does not conform to the heterosexual mainstream.
Judiciary legitimises only reinforces state power to persecute those of an alternative sexual orientation or gender identity. The enormous influence in the hands of the state to enforce its vision of morality finds fearsome appearance in the form of subjective state action. The known sufferers of this unpredictable state fury have been HIV/AIDS peer educators under Targeted Intervention Projects in the society who have all been arrested under Sec 377. It is the time when Policymakers must involve the different organs of the state to rethink and brainstorm on this issue for the enforcement and Sec 377 and Targeted Intervention Projects on MSM (Community Based Approach) under NACP-III of National AIDS Control Programme, Ministry of Health and Family Welfare, Government of India.