The New York Times - September 16, 2006
Somini Sengupta

On Saturday an open letter to the government will be officially unveiled, calling for the repeal of what is known by its official moniker, Section 377, which makes "carnal intercourse against the order of nature with man, woman or animal" punishable by 10 years in prison.

The letter is signed by an eclectic list of Indian writers, filmmakers, lawyers and other luminaries, including the author Vikram Seth, the actress Soha Ali Khan and a former attorney general of the Hindu-nationalist Bharatiya Janata Party-led government, Soli Sorabjee.

"In independent India, as earlier, this archaic and brutal law has served no good purpose," the letter argues. "It has been used to systematically persecute, blackmail, arrest and terrorize sexual minorities. It has spawned public intolerance and abuse, forcing tens of millions of gay and bisexual men and women to live in fear and secrecy, at tragic cost to themselves and their families."

The letter comes less than two months after a similar plea from the government AIDS agency. In an affidavit to the Delhi High Court calling for a repeal of the law, the National AIDS Control Agency argued in late July that Section 377 poses a public health risk by driving gay men underground and impeding efforts to prevent the spread of AIDS.

With more than five million cases of H.I.V., the virus that causes AIDS, India ranks either first or second, depending on who is measuring, among countries with the largest number of infected people.

The statute is being challenged under a lawsuit brought in 2001 by a gay-rights advocacy group called the Naz Foundation, which argued that the law contravenes rights enshrined in the Indian Constitution, including equality, privacy and freedom of expression.

The case was initially thrown out by the Delhi High Court on the grounds that the foundation did not suffer as a result of the law and so had no legal standing to sue. The Supreme Court of India earlier this year tossed the case back, instructing the Delhi court to review the case on its merits. The next hearing is scheduled for Oct. 4.

The campaign to repeal Section 377 reflects a confluence of broad changes sweeping this country, from health concerns and urbanization in India to a growing awareness about India's place in the world. A preface to the open letter, written by Amartya Sen, the Nobel laureate and economist who is now a professor at Harvard, calls the law, codified in 1861, "a colonial-era monstrosity."

"That, as it happens, was the year in which the American Civil War began, which would ultimately abolish the unfreedom of slavery in America," he wrote. "Today, 145 years later, we surely have urgent reason to abolish in India, with our commitment to democracy and human rights, the unfreedom of arbitrary and unjust criminalization."

The law is today most often used to prosecute cases of child sexual abuse, and its backers warn that its repeal could jeopardize efforts to arrest offenders. The office of the solicitor general of India declined to comment on the law, on the grounds that it is under litigation.

Section 377 is rarely now used to prosecute gay adults engaged in consensual sex, lawyers and activists say, but it remains a whip with which to threaten, blackmail and jail suspected gay men and lesbians where they gather - in parks, bars and even, on occasion, on the Internet. Strictly speaking, the statute makes it illegal to distribute condoms to gay men or in Indian prisons.

As with most things in this country, whatever generalizations one can draw about attitudes towards homosexuality, its opposite is also just as likely to be true.

And yet, stigma and scorn prevail. Indian newspapers earlier this year, for instance, carried the story of a woman who attempted suicide after being forcibly separated from her lover, whom she said she had married in a Hindu temple.

In western Vadodara, also this year, the police filed kidnapping charges against a woman for running off with another woman; the two told local authorities, according to local news media reports, that they wanted to live together.

In June came news that the scion of a former royal family had been disinherited after saying he was gay.

060916
NYT060915