The Heteronormative State and The Right To Health In India
Dipika Jain & Kimberly Rhoten*
Volume 6 Issue 4 (2013)
The Supreme Court of India recently upheld the constitutionality of § 377of the Indian Penal Code and thus recriminalized adult consensual private same sex conduct. In doing so, the judgment overturned a four-year old Delhi High Court decision finding § 377 unconstitutional on the basis that the Section violated the rights to life and personal liberty of lesbian gay bisexual and transgender persons living in India. Evidence shows that antisodomy and same sex criminalization laws, such as § 377, have predictable and detrimental health effects. Such laws create legal and social barriers to effective prevention and treatment of HIV/AIDS. The resulting limited access to medical information and treatment for life-threatening conditions (HIV/AIDS) violates the constitutionally guaranteed and internationally recognized right to health of lesbian gay bisexual and transgender persons and men who have sex with men. However, this paper argues that public health arguments to repeal homophobic laws may act as a double-edged sword if not appropriately placed within a human rights framework. Basing the repeal of such laws on a public health rationale (namely, the increased prevalence of HIV/AIDS in these high risk communities as well as amongst the general population) only further associates lesbian gay bisexual and transgender persons and men who have sex with men with sexual disease sand haphazardly premises their rights on medical reports and expertise and not their fundamental human rights. Reports, affidavits and articles submitted on behalf of the petitioners and interveners in Suresh Kumar Koushal v. Naz Foundation indicate that § 377 creates a discriminatory environment through the institutionalization of stigma and police harassment, negatively impacting the access to HIV/AIDS prevention, treatment information and resources for gay bisexual and transgender persons living in India. Furthermore, international comparative studies of countries in which same-sex conduct is criminalized demonstrate consequential reduced access to HIV/AIDS information and services. In such countries, high-risk groups (e.g. men who have sex with men) are ashamed and afraid to provide vital sexual information to health providers for fear of social harassment and potential arrest. The Supreme Court’s recent decision to reinstate § 377’s application to private consensual same sex conduct unfortunately overlooks these important health considerations, and will likely lead to similar negative health outcomes— thus, in turn, resulting in constitutional violations of the right to health and, consequently, the right to life of the sexual and gender minority persons living in India.