VZCZCXYZ0000
OO RUEHWEB

DE RUEHNE #1779/01 1791228
ZNR UUUUU ZZH
O 271228Z JUN 08
FM AMEMBASSY NEW DELHI
TO SECSTATE WASHDC IMMEDIATE 2424

UNCLAS NEW DELHI 001779 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PGOV PHUM PREF PREL SOCI IN
SUBJECT: GAY RIGHTS IN GANDHI-LAND 
 
¶1. (SBU) Summary: On June 29, several hundred gay activists 
plan to march in three Indian cities (New Delhi, Kolkata and 
Bangalore) in what is anticipated to be the largest display 
of gay pride in a country where homosexuality is considered 
illegal or "against the order of nature."  Incidentally, on 
July 2, the Delhi High Court is expected to rule on the 
constitutionality of Section 377 of the Indian Penal Code 
(IPC), which criminalizes and punishes homosexual acts.  The 
law is a carryover from British rule and remained on the 
books after India gained its independence in 1947. 
Non-government organizations (NGOs) that provide support to 
gay men, women, transgenders and transsexuals are calling for 
the equal treatment of sexual minorities in India.  However, 
Indian society has yet to embrace its gay community, and, in 
most scenarios, continues to shun them. The activism 
surrounding Section 377, though impressive for a conservative 
nation, is largely under-acknowledged by the media. 
Activists tell PolOffs that the Delhi High Court will likely 
stall in issuing its decision to either repeal or "read down" 
Section 377.  If and when the Delhi High Court verdict does 
occur, many are not optimistic that sexual minorities will be 
provided with any legal rights in the near future. End 
summary. 
 
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GAYS IN INDIA FACE SIGNIFICANT DISCRIMINATION 
----- 
 
¶2. (SBU) In liberal circles, sexuality in India is generally 
viewed as a bourgeois issue and too taboo to discuss in 
polite company.  Homosexuality and the rights of other sexual 
minorities are considered deviant and scarcely register as a 
"serious" human rights concern or priority in India's vibrant 
civil society.  Instead, the gay community largely lived in 
the shadows of Indian society until about a decade ago when 
gay rights groups began campaigning for the rights of sexual 
minorities.  Despite economic and social progress, elements 
of India remain deeply conservative, where even out-of-caste 
marriage is anathema in many families and places.  Some 
families opt to disown their gay children, rather than risk 
social alienation. Media periodically carries stories of 
parents hanging their children by their legs once they are 
discovered to be gay. In rural India, social stigmatization 
of gays remains particularly profound.  Urban India is more 
open and every major metro area has cruising districts. 
 
¶3.  (SBU) There are also several reports of violence against 
the transgender and transsexual community, particularly 
hijras (often called "eunuchs" in English, though few have 
undergone castration) and other "third sex" groups.  Many 
hijras harass people for money, engage in sex work, and are 
becoming increasingly vulnerable to HIV/AIDS.  There are 
allegations of hijras forcefully castrating people in order 
to maintain their community. 
 
¶4.  (U) On June 29, several hundred gay activists plan to 
march in three Indian cities (New Delhi, Kolkata and 
Bangalore) in what is anticipated to be the largest display 
of gay pride in a country where homosexuality is legally 
considered "against the order of nature."  While gay pride 
parades have previously taken place in Kolkata, these events 
will be a first for New Delhi and Bangalore.  Ostensibly 
commemorating the 1969 Stonewall Riots in New York, the 
parade is well-timed as the Delhi High Court is expected to 
rule on the constitutionality of Section 377 of the Indian 
Penal Code (IPC), which criminalizes and punishes homosexual 
acts. 
 
----- 
GAY RIGHTS AND SECTION 377 
----- 
 
¶5. (SBU) Introduced during British Rule, Section 377 was 
drafted in 1860 by Lord Macaulay and is commonly referred to 
as the "Anti-Sodomy Law." According to the IPC, "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." The law was one of several 
that remained on the books post-colonialism.  The Naz 
Foundation, a Delhi-based NGO working on HIV/AIDS prevention, 
argues that the law contravenes rights enshrined in the 
Indian constitution, including equality, privacy and freedom 
of expression. 
 
¶6. (SBU) In 2001, the Naz Foundation filed a petition in the 
Delhi High Court asking for Section 377 to be "read down" 
(vice repealed).  Essentially, the petition argues that 
private, consensual sex should be removed from its 
criminalizing ambit.  However, Naz and many other NGOs assert 
that Section 377 should remain on the books in order to 
prosecute child abuse cases.  (Note: There is currently no 
extensive legal framework to prosecute child sexual abuse. 
Further, rape law is applicable only to women.  Therefore, 
NGOs argue that reading down section 377 is essentially a 
compromise in the absence of other laws to protect women and 
children from sexual abuse or assault.  End Note.)  Since the 
Naz Foundation filed its 2001 petition, other gay rights 
groups in India have joined the effort. In effect, Section 
377 is rarely used to arrest or prosecute gay adults in 
consensual sex, but it remains a tool to threaten, blackmail 
or extort homosexuals in public areas. 
 
¶7.  (SBU) Vipin Bhatt, an Advocate for the Center of Child 
Rights, explained that the Delhi High Court cannot legally 
change the IPC, but can give a recommendation to the Ministry 
of Home Affairs to do so.  NGO Lawyers Collective confirmed 
that recommending a change the IPC is complicated and judges 
require more time to hear the current case. 
 
----- 
POLITICAL PARTIES & SECTION 377 
----- 
 
¶8. (SBU) Despite the usual inclination to indiscriminately 
court every possible vote bank in India, no major political 
party in India has shown much willingness to embrace gay 
rights as part of its platform. The BJP has come out most 
strongly against Section 377's repel or reading down, 
accusing the gay rights groups of being part of a broader 
conspiracy from the West to undermine traditional Indian 
values.  In fact, the BJP, in a move of convenient 
secularism, cited references from the Qur'an and the Bible to 
support its anti-gay rhetoric.  (Note:  There are numerous 
references to homosexual love in Hinduism.  End Note.)  The 
Congress Party has also avoided lending its support to the 
rights of sexual minorities in India. 
 
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GROWING MOMENTUM IN SOCIETY 
----- 
 
¶9. (SBU) Despite GOI and political recalcitrance, there is 
growing momentum among the elite to change Section 377.  In 
2006, 100 Indian literary figures, including Vikram Seth and 
Amartya Sen, called for the repeal of Section 377.  The 
petitioners filed a review petition before the High Court 
pointing out that the homosexual community in India, on 
account of Section 377, is a socially disadvantaged group, 
which is unable to approach the court directly for fear of 
being identified and subject to harassment by the police. 
Some journalists have accused the Mumbai police of extorting 
money from homosexuals.  In addition, the middle class has 
become more accepting of the gay community, evidenced by the 
media attention to the upcoming gay rights march. 
 
¶10. (SBU) Comment: India's burgeoning gay pride movement and 
the campaign aginst Section 377 must look beyond the law to 
raise public consciousness, awareness and support of sexual 
minority rights.  Even if the law is read down or repealed, 
which is unlikely, it will not be enough to reverse the 
discrimination, stigmatization and oppression confronting the 
gay community. 
DAVISON