This is an extract from Gaysia: Adventures in the Queer East (Random House, Rs 350), a book by Australian non-fiction author Benjamin Law. Law has written extensively for Australian and international publications. One chapter in Gaysia is devoted to India and its gay culture.
The following excerpt looks at the way the movement to de-criminalise Section 377 began and its victory in the Delhi High Court in 2009.
The Doctor was famous throughout India for establishing an HIV organisation in 1994 that now occupied a five-storey building, including three levels where twenty-seven HIV-positive kids lived. … When it started in 1994, the Foundation had focused exclusively on men who had sex with men. The Doctor had worked in New York City at the height of the AIDS crisis and saw close male friends die hideous deaths: slow, painful and shrouded by stigma. She saw how quickly the virus spread and knew India would be hit soon. When she got back to Delhi, The Doctor teamed up with a male doctor friend – who was also straight – and together the pair would go to Delhi’s gay cruising parks with sample medications and supplies for sexual health tests.
The Doctor and the other counsellors tried persuading the parents that Section 377, a law that dated back to 1860, was an unfair legislative relic and that they were doing everything they could to fight it. The parents were never convinced. Deep down, The Doctor, too, felt that nothing was ever going to change. The Indian legal system was infamously slow and inefficient, and sexual minorities would never be attended to with any urgency.
Every other day, The Doctor would end up at the local police station, negotiating with the cops to release her outreach workers from detention. … For The Doctor, the breaking point came when her foundation discovered a young Indian man who had been forcibly given shock treatment for being gay. When The Doctor and her foundation took the case to the National Human Rights Commission, they were told it wouldn’t be investigated – once again, because homosexual sex was illegal.
Out of exhaustion and anger, The Doctor’s foundation teamed up with the Delhi-based non-profit Lawyers Collective in 1995. The timing was canny: Lawyers Collective had just been funded to work specifically on HIV issues and shared the belief that Section 377 could be repealed on both civil rights and public health grounds. If Section 377 was repealed, they felt, it would decrease HIV rates dramatically. Once the ban on homosexual sex was lifted, you could speak openly about it and educate people about safe sex. Lawyers Collective had already drafted the petition for repeal and just needed a responsible party to file it. In 2001,
The Doctor filed the petition with the Delhi High Court in the foundation’s name. Lawyers Collective was headed by a human-rights lawyer named Anand Grover. But Anand was not India’s Harvey Milk. Like The Doctor, he wasn’t even gay. Nowadays, Anand worked upstairs in a narrow building that relied on a gated elevator with a human operator. His office reminded me of the Being John Malkovich film set: the walls leaned inwards and the dimensions felt impossible. Volumes of legal tomes lined up in glass cabinets. Receptionists worked hidden behind towering stacks of manila folders.
Anand seemed ageless and had the kind of face that made white hair look so terrific that you looked forward to turning grey. He wore a crisp white cotton shirt, thick-framed designer spectacles and coloured rubber wristbands for different charities over his expensive wristwatch. His heart was grassroots; the rest of him was fabulously tailored. Although The Doctor said she’d always been skeptical that their joint efforts to dismantle Section 377 would fail, Anand said he’d been sure of success.
“I was always 100 per cent confident,” he told me. “There is a mountain to be climbed. You can see it; you have to climb it. It may take time. You may fall. But then you will go ahead, because it will be climbed. There’s no doubt about it, because it’s patent injustice.”
Anand had worked extensively in cases relating to homosexuality and HIV since the late 1980s, when he represented Desmond D’Souza, a gay man who was fired after being diagnosed as HIV-positive. Doctors refused to treat D’Souza and he was detained in a sanitarium for two months by state officials who insisted they were serving the public interest. D’Souza’s mother approached Anand and his team to initiate a lawsuit to have Section 53 – the law that allowed D’Souza to be fired and detained – declared unconstitutional and a denial of due process.
They lost the case and everyone was shattered. In 1992, as D’Souza was dying, Anand promised him that he’d keep on with the work they had started together. After D’Souza died, Anand became obsessed. Gay men approached him for representation if they were being blackmailed. Anand would take on four new pro bono HIV-related cases per month. His wife – herself a lawyer and co-founder of Lawyers Collective – said he’d gone mad, and Anand knew she was only half-joking.
After years of working on these cases, he felt the root cause of each one was the same: Section 377. If India got rid of that law, most of these cases would disappear. And, technically, it wasn’t just gay men who infringed Section 377. “The act was only against gay men on the face of it,” he said. “But if I’m heterosexual and have anal sex or oral sex with my female partner, I’d go to jail too. You have to understand this section.”
Anand looked at the ceiling and recited directly from Section 377. “‘Whoever voluntarily has carnal intercourse with a man, woman or animal –against the order of nature – shall be punished.’
What is the meaning of ‘against the order of nature’? A practice which does not beget children! Penis is the culprit –”
“As it always is,” I said.
Anand laughed, agreeing. “As it always is. And the explanation says, ‘penetration that is sufficient to constitute this offence’. So penile penetration is a must.” This provided an interesting loophole if you were a woman. Lesbians were completely ignored by Section 377. If you were a queer woman in India, this was one of those rare cases in which discrimination actually swung in your favour. When The Doctor, Anand and Lawyers Collective started mobilising for the fight against Section 377, some lesbians in India became nervous. They remembered a 1995 case in Sri Lanka, in which petitioners lobbied against a similar colonial law called Article 365.
Not only did the repeal fail, the campaign made things worse. The previous law, the government decided, wasn’t discriminatory enough, so they created an amendment called Article 365A, which criminalised same-sex relationships between anyone – men and women – as an act of “gross indecency”.
Female-on-female sex was now punishable by up to twelve years’ imprisonment in Sri Lanka, solely because activists had spoken up. It was the court’s perverse way of redefining equality. Anand and Lawyers Collective, aware of these concerns, arranged open meetings and forums for anyone who felt they had a stake in the repeal. Queer people from gay to hijra, transgender to bisexual, poor to middle class, arrived to debate the campaign. In the meantime, the case tediously bounced from the Delhi High Court to the Indian Supreme Court and back to the Delhi High Court.