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18 July 2014

Along with millions of other gay Indians, last year I became a criminal overnight

Laws like India's Section 377, which condemns gay sex as "unnatural", exist in 42 countries across the Commonwealth. It's time to repeal them.

By Pallav Patankar Pallav Patankar

I came out to myself when I was 15. It was 1990 and I didn’t know a single man in all of India who was gay. I had no role models to look up to and all I could hope was that no one would find out about my sexuality. Then at 18 I discovered Bombay Dost, India’s first LGBT magazine, and was amazed to discover a hidden sub-culture of gay-identified Indian men in Mumbai. The scene was so much in the closet that it was unimaginable to think then that some were my neighbours or even teachers in schools.

The Humsafar Trust was set up in 1994 and became the country’s first registered charity working on LGBT issues. We started having Friday meetings and addressing issues around sexuality, health and the law. It was in these discourses that I learnt that not only was it shameful to be a gay man, but it was also criminal as per a law passed in the 1860s by the British called Section 377. This law considered any sex that was not procreative to be “unnatural” and indulging in such acts could land me with life imprisonment. The law had seldom been enforced but it was being used by law enforcement agencies and others to harass gay men and extort money from them. 

Section 377 also jeopardised HIV prevention efforts, and many times our field workers have been arrested for distributing condoms. Over the years, the Humsafar Trust has had to sensitize the police and persuade them that preventing HIV infection is not equivalent to promoting sexual behaviour, which is criminalised under Section 377. These days our programmes have the support of the local health authorities but Section 377 remains a paradox for India’s HIV response, and for its constitution.

In 2009, the Delhi High Court declared that Section 377 should be “read down” so that it no longer applied to consenting adults in the privacy of their homes. Believing that we were now free to be ourselves, LGBT people came out in large numbers to their families, colleagues and friends, and gay book shops and Pride events sprung up. Yet this landmark judgment survived only five years, for on 11 December last year, the Supreme Court of India overruled the Delhi judgement. In doing so, it gave little explanation of the inherent conflict between the law and articles of the Indian Constitution that protect the right to equality, freedom from discrimination and a life of dignity. Along with millions of other LGBT Indians, at the end of last year I once again became a criminal overnight.  

Laws like Section 377 exist in 42 countries across the Commonwealth. While the wording may vary, the essential ethos of the Victorian era is the same. Unfortunately it’s this Victorian ethos which is now being claimed as part of the cultural DNA of Commonwealth countries. Religious groups, fundamentalists and even nationalists have in recent times rallied against repeal of anti-gay laws, arguing that homophobia is part of their own culture. In Nigeria and Uganda they have gone further, introducing new legislation which criminalises every aspect of LGBT people’s identity. No Commonwealth country wins as a result of these laws. None of its peoples have anything to gain from the denial of LGBT people’s fundamental human rights.

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This week I’m visiting London and Scotland as a guest of the International HIV/AIDS Alliance, a global alliance of 40 organisations that are dedicated to ending AIDS through community action, including the Humsafar Trust. I’m here to meet with British MPs and activists and to speak about Section 377 at a conference ahead of the Glasgow 2014 Commonwealth Games. India is increasingly recognised across the Commonwealth as a strong and modern nation. As a gay man and a proud citizen of India, I believe that my country should lead the way forward by repealing Section 377 and encouraging other Commonwealth nations to do the same. The motto of the Commonwealth Games is Humanity, Equality, Destiny. It’s high time that we adopted it and put the criminalisation of LGBT people behind us.

Pallav Patankar is the Humsafar Trust’s director of HIV programmes and a speaker at the ‘LGBTI Human Rights in the Commonwealth’ taking place in Glasgow on the eve of the Commonwealth Games.