Laws must protect constitutional rights of people

Avantika Chaturvedi, CNS Correspondent, India
Photo credit: CNS:
The UN declaration of Human Rights states that all human beings are born free and equal in dignity and that everyone is entitled to all the rights and freedom set forth without distinction of any kind such as race, color, sex, religion, political or other opinion, national  or social origin, property, birth status. But unfortunately sometimes the laws of a country prove to be counter productive, more so in the case of sexual minorities like MSM and transgenders.

Giving one example, Arif Jafar, Managing Director of Balarc Foundation said that Section 377 is acting as a road block for MSMs to access healthcare services. This law considers any sexual act which  is against the law of nature, or which is not for reproduction or is other than vaginal and penile intercourse as unnatural. But the ground reality is that apart from a lot of oral sex going on, 32% of all sexual encounters do involve anal sex. In the high risk population 40% of sexual activity is around anal sex. But if we promote use of condoms for such activities, it amounts to breach of this law.

Many CBO workers have been arrested because of distributing condoms to people like hijras, MSMs and transgenders, as their sexual activities are considered to be against the law.This seriously affects promotion of safe sex practices among high risks populations, thus increasing their risk of contracting HIV and other sexually transmitted infections.

Arif feared that unless Article 377 is repealed, MSMs will remain a hidden popualtion. As long as they are perceived as criminals by law, they will hesitate to come forward to seek healthcare services. And unless they come out to access services we cannot improve their health conditions, we cannot stop HIV.

Arif lamented that while Section 377 talks only about that penetrative sex which is against the  order of nature, but in general practice the police and administration and law enforcers use this law to harass MSMs in general-- they do not even want to debate that a lot of their sexual activities do not come under Section 377.

A counsellor at Bharosa Trust said that that because of Article 377, policemen and health care professionals exploit them; and they feel uneasy  to talk about their health problems. She said that it is not just about HIV and other STIs. Even for other ailments, MSMs avoid going to a public healthcare facility, as these places make them feel uneasy and uncomfortable. They would rather go to a private doctor or a quack or to a clinic run by some NGO, or else take medicines without prescription.

While welcoming the 2014 Supreme Court judgement that recognizes transgenders as the third gender, she said that its implementation at ground level leaves much to be desired, especially in the case of those who are uneducated. On being asked about what changes will help in improving their health conditions, she said that human rights should be granted to everyone, irrespective of the person being a transgender or an MSM or a sex worker. The rights should not be violated. They should be allowed by the law to live the life of normal individuals with their rights. Apart from replacing offensive laws with action oriented supportive ones, it is also important to spread awareness in the community about their rights. 

In Arif’s opinion apart from Section 377 being repealed, it should be the states' responsibility to ensure that all citizens, irrespective of their sexual orientations and gender identity, are able to access public health services. On being asked about the Private Member’s Bill on transgenders that was passed in the Rajya Sabha, Arif said that if this Bill is passed in the Lok Sabha, it will go a long way in improving the condition of sexual minorities as it talks about giving equal opportunity to transgenders.

Even the Supreme Court judgment, has brought about a positive change in the perception of a lot of people and many state governments are now focusing on formulating policies for the benefit of transgenders, and that is a welcome change. If the Bill is passed in the Lok Sabha too, it will definitely improve their conditions because then it will become mandatory for the government to include the transgender population in all their programmes.

Avantika Chaturvedi, Citizen News Service - CNS
August 21, 2015