The Hindu : Activists for new law to deal with child abuse

Online edition of India's National Newspaper
Thursday, Nov 20, 2003

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National

Activists for new law to deal with child abuse

By Our Special Correspondent

NEW DELHI. NOV. 19. Rights activists have called for the repeal of Section 377 of the Indian Penal Code which criminalises consensual sex between same sex adults. They also called for a new law to deal with child sexual abuse.

At a press conference organised by "Voices Against Section 377", representatives of gay rights, women's groups, child rights, health and human rights organisations said the section criminalised homosexual sex while failing to protect children from abuse.

The campaign was in response to the Government stand on a public interest litigation petition filed in the Delhi High Court by the Naz Foundation seeking the removal of adult, private, consensual homosexual sex from the ambit of Section 377. The Government opposed the plea saying that public opinion did not favour a change in the law.

Vijay Nagraj, Director, Amnesty International India, said the Government's response was a "deliberate and wilful violation" of international human rights law. It was trying to "preserve a colonial law through the creation of sociological and legal fiction." The law had to be based on human rights principles and "cannot blindly follow public opinion". If this were to be the case, "the practice of untouchability, child marriage, child labour etc. would all have to be legalised given their widespread prevalence and acceptability in society."

Lawyer and gay rights activist Aditya Bandhopadhyay said the section was repeatedly used to violate the constitutional rights to equality (Article 14), freedom (Article 19) and personal liberty (Article 21) of gays, lesbians, bisexuals and hijras. Police, the medical establishment and even the family used it as a tool of abuse ranging from sexual assault in police custody and extortion to electric shock treatment to "cure" homosexuality.

The Government's claim that no rights violations were involved was false as was its calling on "Indian tradition" for justification. There was nothing "Indian" about the law. It was a colonial law that even Harish Salve, who had appeared for the state in related matters, had called a "vestige and cobweb of colonialism that needs to be done away with."

Enakshi Ganguly Thukral of the National Campaign against Child Abuse said the Government had justified the retention of Section 377 on the ground that it was necessary to prosecute child abusers. This was simply a means to pit child rights against gay rights and to suggest that all paedophiles were homosexual men. This reflected the state's lack of any real concern for the child's search for justice. The Government itself had acknowledged the need for a separate law to deal with child sexual abuse in its first periodic report to the U.N. Committee on the Rights of the Child.

She said double standards exemplified the state's determined criminalisation of homosexual sex for "the prevalence of rape of women by men, or of girl children by men had not lead the state to question the legality of heterosexuality."

The group felt there was a need not only to change the law but also social attitudes. But the law is a marker in a democracy. "There is no place for a state to interfere in consensual adult sexual activity in a democracy," Mr. Nagaraj said.

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