§ British in all its colonies, including India,

§  the
grounds that Right for Privacy is part and parcel of the Fundamental Rights of
life and liberty under Article 21 of the constitution and recognised by the
1948 International Convention on Human Rights. Sec. 377 is a violation of
Article 14 of the constitution since it discriminates persons on the basis of their
sexual orientation; having been enacted in 1860, Sec. 377 is archaic, absurd
and implemented by the British in all its colonies, including India, but now
been repealed in England, the country of origin.

§  48
Section 292 to 294 of Indian Penal Code enumerates obscenity. Subsection (1) to
section 292 of the code defines obscene publication and rest of the part of
section 292 and Section 293 of the code, Prohibits the sale and distribution of
obscene Publications and Sec 294 of the code prohibits obscene acts and songs.

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§  two
months’ imprisonment. In yet another case the Supreme Court reduced the
sentence of the accused to six months imprisonment as the accused while
committing sodomy did not use force on the boy.

§  In
a case of Himachal Pradesh where a truck driver twice committed sodomy on a boy
in his truck, a sentence of one year’s imprisonment and a fine of Rs. 500.00
were imposed on the accused.

§  All
these instances indicates that the actual sentence imposed under this section
is not usually heavy.

Activists Movement

§  Gay
rights activists have been battling against Section 377 for a decade. In 1994,
lesbian and gay groups filed a petition challenging the law in the Delhi High
Court. The case has dragged on for five years and has evoked strong
reactions.52 In 1996 even members of the Indian lesbian collective Stree Sangam
made a presentation on domestic-partnership laws to a government conference on
marriage and family law.

§  It
was “perhaps the first time that a lesbian/gay group attempted to create
public opinion on the issues in such a forum,” the group said in a letter
to the gay magazine Trikone.”

§  In
Feb 99 there was second national LGBTconference Indian National Gay Conference

§  Similarly
the attacks on the film ‘Fire’ and ‘Girlfriend’ have led a number of
organizations to set up the campaign for Lesbian Rights. The petition, filed by
the voluntary organization, argued that it is wrong for homosexuality to be a
punishable offence in 21st century India.

§  However
the most recent legal challenge comes from the Naaz Foundation Trust, New
Delhi.58 Naaz India has filed a writ petition challenging Section 377 in the
Delhi High Court on December 7th, 2001 on.

§  Section
377 violates the right to life and personal liberty, the right to equality and
the right to freedom guaranteed to all citizens as Fundamental Rights under Chapter
III of our Constitution.

Similarly other gay and lesbian groups
like Hamsafar of Mumbai, Sahayathrika of kerela, etc. are also raising gay
issues in the mainstream.

Mainstream Reaction

§  Indian
society is a traditional multicultural diversified integrated society where in
Hindus dominate. And for Hindus marriage is an enduring heterosexual Sacrament.


§  Other
Indian communities also have similaropinion that marriage is a heterosexual institution.
This is supported by Vishwa Hindu Parishad Party, whose president says for
Hindus, this kind of behavior is not just against nature, it is against our


§  Even
Shiv Sena members attacked theaters in New Delhi and Bombay where the film
fire’ (1988) and ‘Girlfriend’ (2004) was being screened they tore down posters,
smashed furniture and organized violent protests.


§  the
last five years, the Indian gay community has moved into and flourished on what
has probably been the most accepting space they could have ever hoped to find-
the Internet. Thus they are forming NGOs, calling up help-lines and meeting
regularly to evolve strategies for their cause.


§  Above
all, Although the high court in Delhi has dismissed the legal petition that sought
to legalise homosexuality. The court ruled that the “validity of a
law” cannot be challenged by anyone who is “not affected by it”.


§  this
feeling of isolation is often accompanied by self-loathing and confusion as to
their future this is so because Section 377 which is used to criminalise and
prosecute homosexuals in actual legitimizes the abuse of homosexuals. Infact
“Gays are beaten up and even raped under the cloak of this law,” says gay rights
activist Rakesh Shaleen of Naaz Foundation. Rakesh also refers to a case that
”Two years ago, gays were forced into medication to ‘cure’ them.


§  This
mistreatment included shock and aversion therapy. When we petitioned the NHRC,
the case was rejected in the light of Section 377.”


§  Thus
Gay right activists and homosexuals has now started demanding social and legal
recognition of

homosexuality because
they have a firm opinion that Legal protection is probably the only way by
which homosexual community can be guaranteed social rights, rights against
exploitation and more importantly, health rights

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