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India: Update to IND32120.E of 25 June 1999 on the situation of homosexuals (26 June 1999-April 2004)

Situation of Homosexuals

According to an article in the Indian Economic Times, over ten per cent of India's population are gay, lesbian, bisexual or transsexual (21 Sept. 2003). However, in a country where there is enormous social pressure to marry, activists claim that over 95 per cent of gays and lesbians in India end up in heterosexual marriages where they must either suppress their sexual orientation or lead a double life (The Times 2 Oct. 2003). A 2003 study conducted by the United Nations Population Fund in rural India found that approximately ten per cent of unmarried men and three per cent of married men reported having had sex with men in the past year (Times of India 19 Sept. 2003). Information on the situation for lesbians is scarce among the sources consulted by the Research Directorate. Reports produced by the International Lesbian and Gay Association (ILGA) and the Indian rights group, People's Union for Civil Liberties (PUCL), maintain that women's sexuality is not publicly discussed in India, leaving lesbians isolated and almost imperceptible (20 ILGA Jan. 1999; PUCL Feb. 2001). In an account of her experience as a lesbian scholar in India, Patricia Ould corroborates that "lesbians are virtually invisible" in India (Gay & Lesbian Review 1 May 2003).

In a direct testimony to the United Nations Commission on Human Rights (UNCHR), Aditya Bondyopadhyay, an Indian lawyer and gay activist, with support from several high-ranking UN officials, reported that sexual minorities and HIV/AIDS workers in India "have been subjected to police harassment, arbitrary arrest, imprisonment, and torture" (IGLHRC 11 Apr. 2002).

Attitudes Towards Homosexuality

With respect to attitudes towards homosexuality, several reports state that homosexuality is socially unacceptable in Indian society (Statesman 27 July 2003; San Jose Mercury News 2 June 2002; AIDS Weekly 5 Aug. 2002). The Statesman maintains that although homosexuality "is not violently persecuted in India," being openly homosexual remains taboo (27 July 2003).

According to Patricia Ould, despite their lack of visibility, some lesbians and gay men do speak openly about their sexuality (Gay & Lesbian Review 1 May 2003). BBC news states that homosexual relationships are more visible in larger cities where there is a greater degree of freedom of sexual expression (29 May 2001).

For example, the city of Kolkata (Calcutta) saw its first public march by gay men (no lesbians took part in the march) on 29 June 2003 (Statesman 27 July 2003). However, the article adds that despite this public activity, "the emergence of homosexuality into the public sphere is still a hesitant affair" (ibid.). The Website of Aanchal, a Mumbai (Bombay) based organization providing counselling and support for lesbian, bisexual and transgender women, mentions that the first Gay Pride march took place in Mumbai on 1 December 2003 (n.d.). According to Aanchal's Website, approximately 140 people took part in the march (n.d.).

In 2001, a lesbian couple married in a Hindu ceremony in Ambikapur, a small township in central India, in one of the India's first gay weddings (BBC 29 May 2001). Fellow residents in the town "expressed their concern" about the marriage and the couple's landlord requested that they leave their home (ibid.). The women responded that "they won't let criticism, and possibly even abuse, from other local residents prevent them from leading their life together" (ibid.).

Citing an Indian non-governmental organization, Amnesty International reported that women in India have been given drugs and "'aversion'" therapy to "cure" their homosexuality (31 March 2004). In 2001, the National Human Rights Commission (NHRC) of India heard but effectively ignored a complaint by a homosexual patient who alleged psychiatric abuse (IGLHRC 16 Aug. 2001). According to the International Gay and Lesbian Human Rights Commission (IGLHRC), the NHRC maintained that "'sexuality minority rights did not fall under the purview of human rights'" (ibid.).

With respect to the government of India's attitude toward homosexuality, the government has declared that homosexuality is "not tolerated in Indian society"; however, it also has "no objection to homosexuality if it is practised in private by consenting adults despite a law [Section 377] banning such relationships" (DPA 14 Sept. 2003). The statements were made in an affidavit after the Naz Foundation, a New Delhi-based, non-governmental HIV/AIDS organization, lobbied the government for the legalization of homosexuality (ibid.).

Section 377 of the Indian Penal Code

Homosexual acts remain illegal in India under Section 377 of the Indian Penal Code referring to "unnatural offences" (Times of India 19 Sept. 2003; Indian News 8 Sept. 2003; Economic Times 21 Sept. 2003; IGLHRC 2003; PUCL Feb. 2001, 11). Section 377 was written by the British in 1860 and essentially criminalized sexual relations that were reportedly tolerated in pre-colonial India (Times of India 19 Sept. 2003; The Times 2 Oct. 2003; Gay Today n.d.). According to Chapter XVI, Section 377 of the Indian Penal Code:

Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine (ILGA 31 July 2000).

In its 2003 report on the criminalization and decriminalization of homosexual acts, IGLHRC reports that Section 377 of the Indian Penal Code "refers to men, but [it] has been used to prosecute women and transgender people as well" (2003). A report on India's sexual minorities produced by the People's Union for Civil Liberties (PUCL), states that Section 377 "is almost always used to target [sexual] minority populations as they are erroneously seen as the only ones to perform 'carnal intercourse against the order of nature'" (Feb. 2001, 11). The report also maintains that because Section 377 "does not distinguish between consensual and coercive sex" voluntary consensual sex can be prosecuted under this section of the law (PUCL Feb. 2001, 11).

However, according to the government of India, Section 377 is rarely applied except when child abuse or rape is alleged (DPA 14 Sept. 2003; The Hindu 10 Sept. 2003). The PUCL report states that the Indian higher courts have heard only 30 cases relating to Section 377 between 1860 and 1992 and that the majority of defendants were prosecuted for "non-consensual acts of sodomy (including sexual assault of minors)" (Feb. 2001, 12).

However, there have also been allegations that Section 377 of the law is being used by corrupt police to extort money from gay men (PUCL Feb. 2001, 13; IGLHRC 11 Apr. 2002; The Times 2 Oct. 2003) and to give homosexuality the status of a disease (ibid.). According to Aditya Bondyopadhyay's testimony to the UNCHR, Indian police use Section 377 of the law to "'blackmail, extort, rape and physically abuse their victims'" (IGLHRC 11 Apr. 2002). Shaleen Rakeesh, an activist from the Naz Foundation, corroborates Bondyopadhyay's testimony (The Times 2 Oct. 2003) as does the PUCL report, which adds that police may also illegally detain sexual minorities for up to a few days and/or "out" them to their families (PUCL Feb. 2001, 13). In addition to the concern regarding the application of Section 377, sexual minorities may also be charged under Section 46 of the Army Act which states that "'any person subject to this act who ... is guilty of disgraceful conduct of a cruel, indecent or unnatural kind ... can be removed from service'" (ibid., 12). Furthermore, Section 292 and 294 of the Indian Penal Code concerning "moral turpitude as a ground for dismissal from service" along with provisions in some of the State Police Acts may be used to target homosexuals (ibid., 12).

The Website of the International Gay and Lesbian Human Rights Commission includes several reports about the arrest of four HIV/AIDS workers from Lucknow, Uttar Pradesh on 7 July 2001 (16 July 2001; 18 Dec. 2001; 11 Apr. 2002). The police reportedly raided the Bharosa Trust and the Naz Foundation, two male sexual health organizations, and arrested at least four staff members under the following charges:

Section 377 of the IPC [Indian Penal Code] read with Sections 120B and 109 of the IPC [conspiracy to commit carnal intercourse against the order of nature and abetment of carnal intercourse against the order of nature], Section 292 of IPC [Obscenity], Section 3 and 4 of the Indecent Representations of Women's Act, and Section 60 of the Copyrights Act (IGLHRC 18 Dec. 2001).

The four were detained for six weeks and released in August 2001 (ibid.). As of an 18 December 2001 IGLHRC report, the four individuals were appealing to have the charges dropped and submitted a request for an investigation into police misconduct, sensitivity training for police, and the decriminalization of homosexuality in the Indian Penal Code (ibid.). No further information on the outcome of these appeals could be found among the sources consulted by the Research Directorate.

Resources for Homosexuals

With respect to available resources and support for homosexuals in India, the PUCL states that "there are organizations, helplines, publications/newsletters, health resources, social spaces and drop-in centers in most of the major cities in India [and even in some] smaller cities and towns"; however, despite the presence of such organizations, the PUCL adds that there is a "lack of resources, personnel, government support and extreme societal/state discrimination" and even the most established organizations reach only a small number of sexual minorities (Feb. 2001, 8). Please consult the attachment for a list of organizations serving sexual minorities throughout India.

Additional resources include GayLawNet, which provides the names of eight organizations and law firms that serve gay/lesbian clients in India (1 Aug. 2003) and the Website of the non-profit South Asian Lesbian Gay Association, based in New York city, which provides links to 19 Indian-based organizations serving gays, lesbians and bisexuals (n.d.).

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.

References

Aanchal Trust. n.d. "Our Work at Aanchal Trust." <http://www.aanchal.org/ourwork.htm> [Accessed 23 Apr. 2004]

AIDS Weekly. 5 August 2002. "Rights Group Says Police Abuse AIDS Workers in India." (Dialog)

Amnesty International (AI). 31 March 2004. "Human Rights and Sexual Orientation and Gender Identity." (AI Index: Act 79/001/2004) <http://web.amnesty.org/library/Index/ENGACT790012004> [Accessed 23 Apr. 2004]

BBC News. 29 May 2001. "Gay Couple Hold Hindu Wedding." <http://news.bbc.co.uk/2/hi/south_asia/1357249.stm> [Accessed 23 Apr. 2004]

Deutsche Presse Agence (DPA). 14 September 2003. "No Objection to Homosexuality in Private, Says Indian Government." (Dialog)

Economic Times [Mumbai]. 21 September 2003. "All That Gays Want is Equality." (Dialog)

Gay & Lesbian Review. 1 May 2003. Vol. 10. No. 3. Patricia J. Ould. "Passing in India." (Dialog)

GayLawNet. 1 August 2003. "India." <http://www.gaylawnet.com/attorneys/insolc.html> [Accessed 23 Apr. 2004]

Gay Today. n.d. Rex Wockner. "India: Zealots Close Down Lesbian Movie." <http://gaytoday.badpuppy.com/garchive/events/121598ev.htm> [Accessed 23 Apr. 2004]

The Hindu [Chennai]. 10 September 2003. "Keep Homosexuality in Crime List." (Dialog)

Indian News [New Delhi]. 8 September 2003. "HC-Homosexuality." (Dialog)

International Gay and Lesbian Human Rights Commission (IGLHRC). 2003. "Where Having Sex is a Crime: Criminalization and Decriminalization of Homosexual Acts (2003)." <http://www.iglhrc.org/site/iglhrc/content.php?type=1&id=77> [Accessed 23 Apr. 2004]

_____. 11 April 2002. "UN Human Rights Commission Opens Doors to Sexual Minorities." <http://iglhrc.org/php/section.php?id=5&detail=66> [Accessed 23 Apr. 2004]

_____. 16 August 2001. "National Human Rights Commission Ignores Complaints of Psychiatric Abuse of Homosexuals." <http://www.iglhrc.org/php/section.php?id=5&detail=137> [Accessed 23 Apr. 2004]

_____. 16 July 2001. "India: Reports of Police Raids, Sodomy Arrests." <http://www.iglhrc.org/php/section.php?id=5&detail=149> [Accessed 23 Apr. 2004]

_____. 18 December 2001. "Sodomy, Obscenity Charges Formally Filed in Trial of 'Lucknow Four'." <http://www.iglhrc.org/php/section.php?id=5&detail=95> [Accessed 23 Apr. 2004]

International Lesbian and Gay Association (ILGA). 31 July 2000. "World Legal Survey: India." <http://www.ilga.info/Information/Legal_survey/Asia_Pacific/india.htm> [Accessed 26 Apr. 2004]

_____. 20 January 1999. "India: The Campaign for Lesbian Rights." <http://www.ilga.info/Information/Legal_survey/Asia_Pacific/supporting%20files/india_the_campaign_for_lesbian_r.htm> [Accessed 26 Apr. 2004]

People's Union for Civil Liberties (PUCL). February 2001. "Human Rights Violations Against Sexual Minorities in India." <http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf> [Accessed 23 Apr. 2004]

San Jose Mercury News. 2 June 2002. "Minority Gays Create a Voice for Unserved Community." (Dialog)

South Asian Lesbian Gay Association (SALGA). n.d. "India Resources." <http://www.salganyc.org/resources_india.htm> [Accessed 23 Apr. 2004]

Statesman [Kolkata]. 27 July 2003. "India's Sexual Minorities." (Dialog)

The Times [London]. 2 October 2003. "Indian Gays fight Taboos for Right to Step Out of Closet." (Dialog)

Times of India [Mumbai]. 19 September 2003. "Why Should Homosexuality Be a Crime?" (Dialog)

Attachment

People's Union for Civil Liberties (PUCL). February 2001. "Human Rights Violations Against Sexual Minorities in India. Lists of Organizations Working on Issues Relating to Sexual Minorities." <http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf> [Accessed 23 Apr. 2004]

Additional Sources Consulted

Internet sites, including: Aanchal; Amnesty International; Dialog; Human Rights Watch; Indian NGOs; International Gay and Lesbian Human Rights Commission (IGLHRC); International Leasbian and Gay Association (ILGA); GayLawNet; South Asian Lesbian Gay Association (SALGA).