On 2 February 2016, the Supreme Court of India referred a batch of eight curative petitions against Section 377 of the Indian Penal Code to a constitutional bench of five judges. The law, dating back to colonial times, criminalises sexual acts considered to be “against the order of nature,” including homosexuality.
India has seen much popular debate over the issue especially after the Naz Foundation (India) Trust (a Delhi based non-governmental organisation that works on HIV/AIDS and sexual health) filed a case in the Delhi High Court in 2001 to strike down Section 377. The high court finally passed a judgment to decriminalise homosexuality in 2009, but the Supreme Court decided to reverse the decision in 2013, claiming that changing the law was the prerogative of the parliament and not the judiciary.
On 4 February 2016, Ishan Marvel, a reporter at The Caravan, spoke to Anjali Gopalan, the founder and executive director of the Naz Foundation over the phone. Gopalan discussed the journey of the Naz Foundation over the years,and the problems concerning the LGBT (Lesbian, gay, bisexual, and transgender) rights in India.
Ishan Marvel: Could you tell us about the Naz foundation, and how the petition against Section 377 has proceeded over the years?
Anjali Gopalan: We set up in 1994, and started our work in the context of HIV/AIDS prevention. One of the groups that we began working with was the men who have sex with men (MSM) community. We found that many of these men were married, or wanted to get married, because at that time, there were no role models—absolutely no one to talk about homosexuality, everything was hidden. So, we realised it was very important to start working beyond the gay community. And since one of the major routes of transmission of HIV is sex, we felt it was critical to start working on issues of sexuality.
Towards the end of 2000, a young man came to us who had been given shock treatment to get rid of his homosexuality at a major government hospital in Delhi. We went to the National Human Rights Commission (NHRC), but they did not even register our case, saying that [homosexuality] was an illegal activity. So, in 2001, we filed a case in the Delhi High Court to decriminalise homosexuality—to read down the law, so that you leave consenting adults out of its purview. In 2003, the high court threw the case out, and we went to the Supreme Court, which instructed the high court to listen to us on merit. Finally, in 2009, we got a very good judgment, where the high court actually decriminalised homosexuality. Unfortunately, in 2013, the Supreme Court set that aside. They said it was the legislature’s responsibility, and that [homosexuality] goes against the morality and the values of our culture.
It was a shocking judgment for us and the entire LGBT community. Between 2009 and 2013, people actually started coming out and talking about their sexuality. There was a huge sense of comfort and relief. But of course, after the 2013 judgment, we filed a curative petition, which was heard this week along with seven others, and the Supreme Court referred the matter to a five-judge constitutional bench. But we don’t know whether they will hear it or not.
IM: People seem to be divided. Some say the referral of the curative petitions is a positive judgment, while others are concerned it will amount to nothing.
AG: See, it’s very difficult to predict what the court will do, so there’s no point in trying to second guess. But I hope they understand that we are a democracy, and we shouldn’t be denying the very existence of a fairly large community. In 2013, the Supreme Court said that the issue only concerns a minuscule fraction of the population. First of all, how does the court know this? And even if it was true, are we saying that just because they are a minority, their rights don’t count? That is a very dangerous path to tread. Tomorrow, the same kind of arguments can be used to come down on other minorities like Muslims and Christians. Who is to stop that? We’re already seeing it happen.
We keep calling ourselves the largest democracy in the world, so it’s about time we start thinking like one. No democracy denies basic rights to its citizens. And to think, we haven’t even talked about rights yet—we’re just asking for decriminalisation. So let’s see, we have our fingers crossed. The Lawyers Collective [a non-governmental organisation providing legal assistance to women, children and other members of marginalised groups] and Anand Grover [a founder-member of the collective] have been with us from day one, and they have done it pro bono.
IM: In 2013, the Supreme Court laid the responsibility on the government—do you see the present government acting towards it?
AG: See, present or past governments, they haven’t particularly been forthcoming. Suddenly, the Congress in recent times has made some pro statements, but that’s it. The point is, of course this should have been done by the parliament, but since they have not done it, that is why we went to the courts, right?
IM: How has the LGBT community in India evolved over the years?
AG: One thing I have definitely seen is that the community has become a lot more vibrant, more open, and more confident. It’s a great thing, because there’s no reason for people to feel frightened or to constantly hide their reality. I’m so glad when I see so many young people taking a stand, talking openly—all of that makes a lot of difference. It’s the only way to change the mindset of people. One aspect is, of course, the law. Without a strong law, things won’t change—but laws don’t change apathy. So, it’s very critical to work side-by-side with the general community to make them understand what it means to be homosexual, because very often people are scared of what they don’t know, and that translates into the kind of fearful responses that we see sometimes.
People need to understand that for someone who is gay, it’s very normal and natural to be that way. It’s not a choice—why would anyone choose to be gay in a society that is so negative towards homosexuality? What is the “order of nature” anyway, and who decides it? It’s a very Judeo-Christian term, it means you should not be having sex for anything except procreation. If that is true, then I’d say everybody has been doing an unnatural act. (Laughs) Before the British came, we had a very open sexual culture. It’s post colonisation that things started changing.
IM: How important is the change in law if the social component remains unaddressed?
AG: With any issue, the two components have never gone hand in hand. Often, one has changed the other, and it could be either way. Look at sati, it is a very good example of something that we all believed in. It was a deep part of our culture, even in modern India. You could not imagine that a woman who had become widowed would not perform sati. But that changed only because the law was brought in. It didn’t change overnight, but it did. Similarly, look at dowry. I’m not saying it has stopped, but remember the number of cases? Every day there used to be a story in the newspaper about a woman being burnt to death. We don’t see it that much anymore. So, we need a strong law, but along with that we also need to ensure that we keep engaging with the public, so that their whole attitude towards the LGBT community changes.
IM: One strand of criticism about LGBT activism is that it is limited to the urban-educated population—does there need to be an emphasis on including people beyond this class?
AG: But they are included! If you go to these protests, you will realise that a large number of people there have run away from rural areas to the cities. And today, with the kind of work that has happened over the years, we at Naz run a lot more groups in rural areas and small towns, like those for MSM. So, let’s not make this a rural versus urban argument, because very often boys who are gay in rural areas have no space to express themselves. As a result, they end up coming to the cities, because back home, who’ll they talk to? And by the way, there is a certain acceptance of male homosexuality in the rural areas even if it’s not talked about openly. The problem especially is regarding the women. Because at any level, the biggest challenge to patriarchy is when a woman says she doesn’t need a man. (Laughs)
This interview has been edited and condensed