A day after Independence Day, Mumbai’s gay community and its friends took part in a bold gay rights rallies, which started from August Kranti Maidan, where Mahatma Gandhi made his famous Quit India speech in 1942. The rally follows Union minister for health and family welfare Anbumani Ramadoss’ call for abolishing section 377 of the Indian Penal Code at the 17th International Conference for AIDS in Mexico City on 8 August. These are welcome developments, to tackle the HIV epidemic and further individual liberty.
Turning a blind eye to homosexuality at home and in school has meant a complete absence of counselling by parents and teachers. The World Health Organization said in 2006 that three in four homosexual men in Bangalore did not know how HIV is transmitted, and a large proportion had unprotected sex. In 2005, 18.2% and 12.5% of homosexual men in Andhra Pradesh and Mumbai, respectively, were HIV positive — in Asia second only to Thailand. Fortunately, voluntary organizations and government health workers have been a source of life-saving advice on safe sex practices.
However, section 377, drafted by Lord Macaulay in 1860 as a part of the colonial project to regulate and control life of Indian subjects, accuses these HIV activists of aiding and abetting crime. Homosexuals can be imprisoned for up to 10 years, three years more than the minimum punishment for rape. Legalizing homosexuality would go a long way in opening institutional routes for identifying and counselling high-risk groups.
But, is the HIV epidemic the sole reason for decriminalizing homosexuality? Is it “just” for a few hundred members of Parliament in New Delhi to infringe on the sexual liberties of 1.2 billion citizens with almost as many moralities, preferences and values systems? In the common law tradition, law is “just” if it serves liberty; law is the body of general principles protecting the lives (criminal law) and property (tort law and contract law) of individuals. Justice is founded on the individual’s right to own his body, from which derives the right to expression, belief, property. Section 377 should be abolished not only because it will help abate the HIV epidemic, but also because it is unjust.
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