On the verge of a kind of freedom: Ridding India of Section 377

Vivek Divan

Vivek Divan

Vivek Divan is qualified in the law and queerness, and was part of the original team that litigated the Naz Foundation case challenging Section 377 in 2001, and led extensive community engagement in relation to the case since then.
Vivek Divan

This is a brief rumination on how we got to where we are today with the battle for queer decriminalization in India. Much media coverage has occurred recently about related cases in the Supreme Court (SC). They either fail to fairly represent a complex and long journey, are inaccurate in how they attribute cause and effect, and the process of empowerment that has taken place in queer consciousness related to the court battle, or plug a few people at the cost of what has always been a fundamentally collective process. It is not possible to cover it all in a few paragraphs. Yet, it is important to set some fallacies right if we are to do the right thing by our communities either now or in the future.

A few weeks ago, on 17 July 2018 the SC hearings related to whether Section 377 (India’s anti-sodomy law) should remain on the books finally concluded. The word ‘finally’ has some significance here. Although the first case challenging the legal provision was filed in the Delhi High Court in the mid-1990s, what really got things rolling towards this recent day in court was the Naz Foundation petition filed and litigated by Lawyers Collective in October 2001. From then to now it’s been more or less 17 years – almost the time between Bowers and Lawrence in the US Supreme Court.

A brief history

It isn’t possible to recount the entire journey that got us here, but it’s broad strokes are well known: the writ petition challenging the constitutional validity of S377 (insofar as it applied to consensual adults, as the section also covered child sexual abuse), which criminalized “unnatural sex” was filed by the HIV NGO Naz Foundation India in 2001, arguing a variety of Fundamental Rights violations, including the right to health, privacy equality, and freedom of expression. The Indian government responded in confusing ways – the Health Ministry argued that the law hugely impinged HIV work and therefore the right to health, while the Home Ministry argued for it to remain because its absence would be against public morality, unleash abuse of children, and destabilize Indian family structures. A slew of interveners joined the case arguing against Naz’s position. They included AIDS-deniers, religious zealots, and a child rights organization. In 2006, Voices Against 377 – a coalition of human rights, women’s rights, queer rights and child rights groups in Delhi – filed an intervention supporting the Naz case. Glorious success was experienced in 2009 through the celebrated Delhi High Court judgment striking down S377 and decriminalizing queer Indians. Soon after, religious forces united like never before in an appeal to the SC seeking the overturning of this decision. The court did their bidding in an utterly disingenuous ruling in 2013. Queer Indians were recriminalized. Much of what happened in court can be found at the excellent Orinam website, and in detailed transcripts of hearings that took place over the years.

Representing the many

What has been less known, and as vital, is how we got to the court and how the case sustained over the years outside the courtroom. This happened in no small part because of the unique journey the case took outside the courtroom, characterized by the coming and doing together by a disparate many. Unfortunately, documentation of the case, including films made about it, has failed in telling this part of the story. Precipitated by criticism from some within the community who objected to Naz filing the case as it did – among other things, for not having consulted with the wider community before filing, for apparently pegging the case on HIV and framing some of the arguments and language in problematic terms – Lawyers Collective, which conceived of and handled the case took the initiative to engage with and include the wide swath of queer activism that was concerned about the case and its fate. This set of a series of meetings in the 2000s often with scores of activists attending from all parts of the country, across class, sexuality and gender lines. The meetings were minuted in detail and shared with participants (soon to be available on Orinam). These minutes make for fascinating reading, traversing a variety of discussions – on shoring up arguments in the case, strategizing options before the courts, and getting affidavits from experts (historians, mental health experts, academics etc.). What they reveal is a community marshaling its resources and ideas, coming together with unity of purpose, and gaining in strength and courage in all its diversity to stake a claim to India’s Constitution. These meetings were an occasion for the queer community to develop consensus, debate and discuss on the effect of law, its role in people’s lives, strategies to engage with it in and outside the courtroom, to be educated about otherwise arcane judicial processes, and the risks and benefits of taking particular steps to advance the case.

Notably (and especially important given the erroneous narrative that recent petitions were the first time queer people came before the court), it was through this process that Voices Against 377 decided to file an intervention through the Alternative Law Forum way back in 2006 to bring forth the eloquent voices of queer community members through affidavits describing the violent impact of S377 on their lives. Voices Against 377 and other organizations also began to engage with other movements and spaces – women’s rights, trade unions, and the academy – on queer marginalization, as part of an effort to build understanding. I believe that this process of discourse also played some part in more and more queer people beginning to reveal their identities in various public ways.

Being the organizer and moderator of the community meetings was one of the most rewarding moments of being a lawyer. The solidarity and confidence these occasions engendered changed the way in which the case came to be owned by ordinary queer people of extraordinary courage who truly represent the LGBTQ experience in India. It generated an energy that has sustained to the present. Society at large saw this manifest itself in the joy expressed with victory outside the Delhi High Court in 2009, and the anger of defeat in 2013. I’m not aware of a similar collective, participatory process that culminated in queer decriminalization anywhere else in the world.

Fast forward

After the SC resurrected S377 in 2013 (the Koushal judgment) many of the parties, including Naz and Voices Against 377 filed ‘curative’ petitions seeking the setting aside of that verdict arguing that there was a gross miscarriage of justice. In early 2014 the SC issued a vital rights-affirming judgment in the NALSA case recognizing transgender people as equals and entitled to the full protection of Fundamental Rights. Of course, this was at odds with it’s own decision of 2013. Given this, transgender activists filed a fresh petition in 2016 challenging S377, raising this inconsistency. This petition was explained to the larger queer community by the petitioner-activists and their lawyer at a community dialogue that was revived by Lawyers Collective in February 2017. At that meeting a consensus view was reached to bide our time with the curative petitions given the lack of certainty about a positive outcome in the courtroom. A fresh petition was also filed by a group of “highly accomplished” gay men and women in 2016 also challenging S377 (the Navtej petition). Alas, they or their lawyers declined to attend the community meetings that were held in 2017 and 2018. The queer activist community has almost never had the privilege of engaging with them on the S377 cases during these recent years.

Fortuitously, a game-changer occurred in August 2017 – a nine-judge bench of the SC emphatically articulated and upheld the right to privacy as a Fundamental Right. While doing so, it also threw serious doubt on whether Koushal in 2013 was correct, essentially creating an opportunity to reconsider that decision and set it aside. This prompted a meeting of the lawyers appearing for the various petitioners and interveners in the multiple cases now before the SC seeking setting aside of S377, including those appearing for the Navtej petition. A collective decision was taken to proceed cautiously with coordination and reassess the situation later in the year; this approach was shared with the queer activist community at large. Unknown to the other lawyers involved in the case, in January 2018 the Navtej case was listed before the SC, which pronounced that Koushal required reconsideration. This was a very good outcome (and in lines with its privacy ruling of a few months prior), despite the wider community’s representatives not getting a chance to be in court that day; it meant that the court was going to reopen the issue of the validity of S377.

Carrying on regardless

Unfortunately, going it alone characterized the manner in which the Navtej case moved along to the final hearing in July 2018. Troublingly, some of it – calls for fundraising, hiring an image/ media/ publicity expert – was done in the name of and “for the benefit of the community as a whole”, without any engagement with, and to the surprise of many in the larger queer activist community. Queries made by queer activists to the lawyers involved seeking clarifications about such representation never received a response.

In the meanwhile, building up to the case in July and since, problematic coverage of it occurred. For instance, the New York Times (historically never ahead of the curve in queer-themed reporting) featured a couple of stories about the Indian context for Pride month in US. While doing so it plugged some of the people involved in the Navtej petition, and ludicrously stated that queer people “emboldened” by the “highly accomplished” petitioners had filed their own petitions. To use another US reference, that is tantamount to saying that Larry Kramer was emboldened by Michael Stipe. Worse, it portrays cause and effect in the most disingenuous manner. Indeed, more petitions were filed in May 2018 challenging S377 – by a gay hotelier, queer students and alumni of the prestigious Indian Institutes of Technology, founders of a pioneering queer organization (Humsafar Trust), and by Arif Jafar, a gay man who has been on bail after being arrested under S377 in 2001. The former two were filed by lawyers involved in the Navtej petition (the IIT petition, at least somewhat, quelled the criticism made about the classist and entirely unrepresentative nature and optics of the Navtej petition). The latter two were filed to fundamentally bring to the court the quotidian violations that queer people face, and counterbalanced the elitism that the Navtej petition represented in manner and substance. The founders of Humsafar and Arif Jafar did not need to be “emboldened” by other gay men and women to fight this fight. They, and many others who have been part of this process for over two decades are in fact the pioneers. I dare say it is these queer folk at the forefront of the struggle for queer emancipation who have emboldened others to file their petitions.

Apprehensions around class and representation have existed throughout this journey, and many involved in the case have tried to ensure inclusiveness and depict the diversity of queer experience, albeit surely with shortcomings. Indeed, class has been used by political parties in India to portray LGBTQ experiences as urban and elite, which activists in India have tried to assiduously counter. The framing, tenor and unilateralism of the Navtej petition have been deeply disquieting to many. What it may bode for future queer activism is of as much concern.

On the other hand, fortunately a robust history of the battle against 377 connects many of us together. Hopefully, it is in this that we will find our strength to carry on regardless. It is crucial to record some of the above to highlight what I began this essay with – the importance of getting our histories right. But as importantly, to pay respect to the many whose enormous efforts have led us to the brink of emancipation from the yoke of S377, and to inform the emancipation of tomorrow. This is one attempt to begin to communicate this rich activist history, which underlies the long battle against S377, predates the Navtej petition and on which that petition has inevitably built.

This does not in any way detract from the fine lawyering and rhetorical flourish that took place for the various petitions in the SC a few weeks ago (and, indeed over the many years of this case). It was particularly moving to witness some of this being voiced by queer lawyers who argued before the court for the Navtej case (although many queer lawyers have been part of lawyers’ teams in the several petitions related to S377 since 2001, the recent hearing was the first time that queer lawyers also argued the case). Yet, this was never the effort of one or a few, but of many – sometimes quiet, often unrecognized, deeply committed, always intrepid. And, it is to these many that credit is due.

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