Reading Down of Section 377 of Indian Penal code is a Welcome Move for HIV Prevention and Control Among Men Having Sex with Men in India

Second July 2009 ushered a new hope when the High Court of Delhi read down the law against homosexuality in the state of Delhi in India.(1) The court in its decision concluded that consensual sexual acts of adults in private should not be criminalized. This 150 odd years old law was a legacy of the British colonial rule in India. The law commonly referred to as “Section 377” prescribed imprisonment up to 10 years for “carnal intercourse against the order of nature”. Traditionally, the homosexuals were subjected to stigma, violence, and homophobia. Section 377 was often used to force unwarranted arrests and undue harassment of outreach workers and peer educators who used to work with high-risk behavior group population including men having sex with men (MSM).(2) This hampered the effective delivery of outreach services. Section 377, can no longer be used to harass, arrest or prosecute homosexuals. However, sexual acts with children or unwilling adult would still attract the provisions of the section. In essence, homosexuality has been decriminalized but not legalized.

The National AIDS control program of India had estimated that there were 2.35 million men who have sex with men.(3) The latest available figures showed that among all the HRG groups the HIV prevalence was highest in MSM (7.4%) followed by injecting drug users (IDUs) (7.2%), and female sex workers (FSWs) (5.2%).(4) Whereas, the HIV prevalence among IDUs and FSWs had shown either stable or declining trend, there had been an increasing trend among MSM.

The HIV sentinel surveillance among MSM was initiated with just three sites in year 2000. It was gradually scaled up to 40 sites across 19 of the 35 states and Union Territories of India in 2007. Eleven of the 19 states, comprising of 21 of the 40 sentinel sites, had reported HIV prevalence of more than five percent among MSM. Admittedly, the evidence regarding HIV among MSM was yet limited. We needed a more broad based and representative information. However, it was equally true that whenever effort had been made to ascertain the HIV situation among MSM, the results had been alarming.

Based on the limited data one could argue that the MSMs were the highest priority group in need of comprehensive HIV services. The National AIDS Control Organization had subscribed to the recommendations made under Asia Epidemic Model that advocated at least 80% coverage of HRG population.(5) The current coverage of services in India among MSM varies widely between 17% and 97%,(6) but mostly being below 80%.(7) It is hoped that with the new judgment in place, one of the identified obstacle would be out of the way.

Due to societal pressures, stigma and contemporary laws like 377, MSMs are extremely hard to locate and it is difficult for the national program to reach them with the services or establish surveillance. It had been found that the reach of HIV prevention programs for high-risk groups population, including MSM, was generally better in those countries where non-discriminatory laws were in place.(8) The read down law is expected to facilitate provision of services while helping generate evidence of the epidemic status in this rather elusive group.

Considerable legal challenges lie ahead. Baba Ramdev, a noted Yoga exponent and Chairman of Bharat Swabhiman Trust, plans to file petition in the Supreme Court of India challenging the order of the Delhi High Court. Baba was of the view that the homosexuality was a curable disease.(9) The grounds cited for the petition were that right to privacy as a facet to right to life, (guaranteed under Indian Constitution), cannot mean right to enjoy deviant sexual preferences or deviant sexual behavior. Also, that it would expose large chunk of population to the dreaded disease (HIV/AIDS). So, is it too soon to cheer the Delhi High Court Judgement?