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Political intersections between HIV/AIDS, sexuality and human rights: A history of resistance to the anti-sodomy law in India* *This article is based on a longer study that was developed in collaboration with Sexuality Policy Watch, with funding provided by the Ford Foundation. For an extended discussion of the issues examined in this article, see “Culture, politics, and discourses on sexuality: A history of resistance to the anti-Sodomy law in India”, which is available as part of the e-book,<…

2008; Taylor & Francis; Volume: 3; Issue: sup2 Linguagem: Inglês

10.1080/17441690801990655

1744-1706

Radhika Ramasubban,

Feminism, Gender, and Sexuality Studies

Abstract The HIV/AIDS epidemic in India has posed unprecedented challenges to both state and society, to question prevailing constructions of patriarchal gender relations and heteronormativity. Response to the challenge has come not from the political and social mainstream but from the criminalised "margins": people of alternative sexualities, who have launched a struggle for reform of the anti-sodomy law, Section 377 of the Indian Penal Code. This article documents the history of this movement, and identifies the multiple national and global-level cultural, political, and economic strands, shaping it. The legal reform movement has been invaluable as a tool to mobilise disparate alternative sexualities groups around a common strategy, thereby forging them into a tenuous national-level "community". Going beyond legal reform in the direction of sexual rights, however, requires a broader coalition of groups, and a broad-based political agenda of sexual rights for all. This agenda must critique patriarchy, dominant masculinity, and sexual violence; forces that together govern both the subordination of women and repression of alternative sexualities. Keywords: HIV/AIDSsexualitysexual rightslegal reform Acknowledgements This paper uses a mix of primary and secondary documentary sources and in-depth interviews. Foremost thanks to Vivek Divan for generously sharing his extensive knowledge and experience on the subject and making available important documents. Thanks also to: Anjali Gopalan, Anand Grover, Pramada Menon, Shaleen Rakesh, Ashok Row Kavi, Lawyers Collective HIV/AIDS Unit, CREA, Naz Foundation (India) Trust, Humsafar Trust, Sangini (India) Trust, and India Centre for Human Rights and Law, for discussions and access to documentary resources, and to Sonia Correa, Connie Nathanson, Richard Parker, Rosalind Petchesky, Bhanwar Rishyasringa, Robert Sember and Gita Sen for valuable comments. The usual disclaimers apply. Notes *This article is based on a longer study that was developed in collaboration with Sexuality Policy Watch, with funding provided by the Ford Foundation. For an extended discussion of the issues examined in this article, see "Culture, politics, and discourses on sexuality: A history of resistance to the anti-Sodomy law in India", which is available as part of the e-book, SexPolitics: Reports from the Front Lines, edited by Richard Parker, Rosalind Petchesky, and Robert Sember, 2007. This e-book includes a series of case studies, as well as a crosscutting analysis, focused on the politics of sexual health and rights in eight countries and two institutional contexts. SexPolitics can be found online at 1. The problem with the categorisation of non-heterosexual individuals as simply MSM is that it reduces the many-layered and interconnected realities of gender, self-identities and multiple sexualities that underlie "alternative sexualities", to a descriptive sexual behaviour concept driven by narrow disease transmission concerns. 2. Section 377 states that, "Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term that may extend to ten years and shall also be liable to fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section". Only persons actually arrested while committing the said sexual act are eligible for conviction, and not those who profess same-sex attraction. However, as a cognisable offence – a classification that measures the intensity of the offence as being very high – no court order or warrant is required for making an arrest under Section 377. And it is this that gives inordinate powers to the police. 3. While the Immoral Traffic (Prevention) Act of 1956 brought prostitution under independent India's criminal laws, the Criminal Tribes Act of 1871, enacted during colonial rule (and still surviving today), had already criminalised hijras. 4. The ancient myths that date back a few thousand years, and which even today are a part of the everyday lives of ordinary people, are replete with stories of love, lust and desire among gods and humans – both male and female – and portray diverse forms of sexual unions, marriage and family structures (see Doniger Citation2000). Fringe religious cults survive, even today, which worship female sexuality as divine energy (tantric practices). Diverse expressions of sexuality are also to be found portrayed, variously, in temple sculpture, religious and secular poetry and epic literature, spanning both ancient and medieval periods. Non-heterosexual expressions include references in the epic Mahabharata to heroic figures who undergo transformation into transgendered individuals, Shiva as ardhanariswara (half man-half woman/formless-sexless), the Kama Sutra treatise on love-making (that includes references to techniques of oral sex, and same-sex attraction), and erotic temple sculptures that also portray same-sex unions. Vanita and Kidwai (Citation2000) cite ancient Indian legal texts that identified non-consensual heterosexual behaviour as worthy of more stringent punishment than consensual sex between same sex persons. 5. Health professionals do not enquire about the sexual orientation of patients, due to the cultural assumption of universal heterosexuality. And any infection of the sexual organs makes patients' morality suspect in the eyes of health providers anyway. Private doctors do not hesitate to dismiss homosexual patients from their clinics; alternatively, they demand exorbitant fees. Even fee-paying homosexual patients rarely receive quality care. It was this consistent observation that led Naz Foundation, which works with MSM groups in Delhi, to set up its own clinic (see Gopalan Citation2005). 6. This was a public statement made by Dr. A.S. Paintal, then Director General of the Indian Council of Medical Research, in 1990 (Ramasubban Citation1992). 7. Hijras are transgender people and people with inter-sex conditions, many of whom undergo castration, hormonal treatment or sex-change operations. Kothis are biological males who adopt a strategic feminine identity for the purpose of sexual relationships with men. Nanda (Citation1990, Citation1994) and Jaffrey (Citation1996) contain ethnographic accounts of the lives of hijras. 8. A significant source cited in the petition was Vanita and Kidwai's book (2000). 9. This entire discussion is based on Ramasubban and Rishyasringa (Citation2002). 10. Articles and agony columns, discussing sexual aspects of marital and non-marital relationships, have become a regular feature of the metropolitan English press. Extra-marital affairs and live-in relationships have become a staple of TV soaps and Bollywood cinema. 11. The forces of globalisation have, admittedly, opened up a few fringe spaces for public representations by sexually marginalised and criminalised individuals and groups. But these remain minimal. Examples include cultural shows at academic and allied events, such as the Rainbow Coalition at the World Social Forum (Mumbai, January 2004); annual "Festivals of Pleasure", organised by sex worker coalitions that also showcase cultural products on the theme of alternative sexualities; and the recent runaway market success of the autobiographical novel by a sex worker in Kerala, Nalini Jameela. 12. Some comradeship was forthcoming from gay individuals, and MSM support groups/helplines/social action organisations, that were now active in metropolitan cities. However, they were unable to empathise entirely with the lesbians. While there may have been a liberation movement focused on gay men, it lacked a gender analysis, and as a result the analysis that it did conduct remained firmly patriarchal. 13. The Ministry held that the Naz petition was merely "academic" in nature and did not call for any "substantial question of law of public importance …", that there was no evidence that HIV prevention work was being hampered due to Section 377, that "public opinion and the current societal context in India does not favour the deletion of the said offence from the statute book", that "the right to privacy cannot be extended to defeat public morality …", and that it was for the legislature to decide whether homosexuality should remain an offence. (Lawyers Collective Citation2005). 14. Preliminary Report of the Fact Finding Team on the Arrest of Four men in Lucknow Under IPC 377 (January 2006) (mimeo).