http://www.alertnet.org/thenews/newsdesk/HRW/d14ff71630ffac3fa9dfd269d6d09f8f.htm
India: ‘Sodomy’ Laws Perpetuate Colonial Prejudices
15 Jun 2009 01:45:00 GMT
Source: Human Rights Watch
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(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
( http://www.hrw.org/sites/default/files/reports/lgbt1208hiweb.pdf )
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,”
( http://www.hrw.org/en/reports/2008/12/17/alien-legacy-0 )
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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