Memo to Union Minister Of Law

18 September, 2003  
The Union Minister for Law,
Government of India
New Delhi-110001
Dear Shri Jaitly ji,
The enclosed statement is to express our strong protest at the Government petition in the Naz Foundation case. We hope you will consider our demands.
The All India Democratic Women's Association strongly objects to the retrograde arguments advanced by Government to justify the continuation of Sec. 377 in the IPC. This clause criminalizes homosexuality as also other sexual expressions like oral sex, considered "against the order of nature," and was challenged by the Naz Foundation in the Delhi High Court. In its petition, which it has taken two years to file, the Government's case is that Indian society and culture does not "accept" homosexuality; it is further stated that Sec. 377 is necessary to "provide a healthy environment by criminalizing unnatural sexual activities" and also, that "it can open the floodgates of delinquent behavior" .
We on our part maintain that firstly, the Government does not have any locus standi to interfere in the private sexual activity of two consenting adults, regardless of its interpretation of what is natural or unnatural sexual behaviour. Secondly, prevailing and dominant cultural and social norms cannot be invoked in a manner as to circumvent or restrain fundamental and constitutional rights. If we were to accept the government's standpoint then many of the legislations concerning women's rights and even dalit rights would never have been enacted since even today there are many sections of society who consider wife beating or dowry practices to be consistent with "tradition and culture," just as they consider untouchablity to be the "natural order" of society. Thirdly, even if one accepted the flawed argument that cultures and social attitudes have relevance for legal rights, then it must be pointed out that the Government petition clearly has a very narrow reading of culture and social acceptance, because Indian history is replete with examples of the accepted existence of homosexuality. In fact our history and patterns of cultural evolution reflect a diverse, liberal and tolerant liberal approach towards sexuality and its expression. It was criminalized only during British rule.
As far as the Government's argument that Sec 377 needs to be retained because it is also used against cases of child abuse and is therefore necessary, this only shows the bankruptcy of the Government that in spite of repeated struggles and demands by women's organizations India remains one of the few countries that does not have a comprehensive law against child sexual abuse till date. There is nothing to prevent the Government from enacting such a law. This should include, as suggested earlier by AIDWA and other women's organizations, a clause that criminalizes non-consensual same sex relations, whether of children or adults.
The AIDWA reiterates its demand that Sec 377 should be scrapped and that the Government should enact a comprehensive law against sexual assault that would include child sexual abuse and non-consensual sexual contact whether between the two sexes or the same sex.
Brinda Karat
(General Secretary)