Indian activist: “No law can define whom I should love”

With the result of India’s general election announced on 16 May, HIV activists are gearing up to petition the new parliament on an archaic law that criminalises sexual minorities.

With the result of India’s general election announced on 16 May, HIV activists are gearing up to petition the new parliament on an archaic law that criminalises sexual minorities.

“No law in the country can define or tell me whom I should love and that is the premise on which we say no to Section 377,” says Vivek Anand. “This is not the time to take things lying down, we are not going back.”

Anand is chief executive of the Humsafar Trust, a grassroots organisation which represents lesbian, gay, bisexual and transgender (LGBT) communities in Mumbai and provides free HIV tests and other health services. He is openly gay but, with discrimination enshrined in Indian law, many other people in these communities choose to hide their sexuality.

Archaic law

Section 377 states: “Whoever voluntarily has sexual intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life.” But this law is a relic of British colonial rule in India, which was introduced in 1860 and imposed British moral values of the time. Today, 150 years later, the law still criminalises sexual minorities and they continue to undergo harassment, blackmail and discrimination.

Anjali Gopalan is a human rights activist and executive director of Naz Foundation India, a non-governmental organisation working to prevent HIV among men who have sex with men. She said: “Section 377 is one of the biggest barriers to this population group accessing health services, because they are reluctant to reveal same-sex practices and risk prosecution. This means a large section of the community is invisible, pushing those who are infected and most at risk of HIV underground, making it difficult for health workers to reach them. The law has also been used to harass people working to prevent HIV.”

In July 2009, the Delhi High Court passed a landmark judgement decriminalising private consensual sex between adults of the same sex. This was the result of a campaign against Section 377 led by Naz Foundation. But in December 2013, the judgment was overruled by the Supreme Court of India – a major setback to both gay rights and HIV prevention efforts.

Gay rights repealed

After the July 2009 ruling, Anand says an overwhelming number of young people made a conscious decision to come out and accept themselves. He adds: “When the ruling was overturned it shattered the LGBT community, especially the youngsters who came out. Now the law states they are criminals and they would rather hide. All we ask is the right to love. Is that too much to ask? The law is supposed to protect human rights not take them away. Who is responsible when someone is harassed by this law? Who is responsible when there are suicides?”

The short-lived legal recognition of India’s gay community had made it easier for people to be open about their sexuality and to reach them with HIV prevention programmes. According to Anand, the reach of Humsafar increased tenfold after the 2009 ruling, enabling health workers to measure HIV among India’s gay population more accurately.

But following the Supreme Court ruling, many men who have sex with men are no longer open about their preferences. They are unwilling to discuss their sex lives with a doctor or other health workers for fear of being revealed.

Sonal Giani, advocacy officer for Humsafar Trust, is bisexual. She says: “Since the Supreme Court upheld Section 377, young men have become victims of extortion. While the community has frequently been the target of hostility and blackmail, there has been a marked rise in distress calls from gay men since this verdict. Criminal groups target potential victims through social media groups. The victims, due to fear of being prosecuted, do not lodge police complaints.”

Cause for hope

A landmark ruling, passed by the Supreme Court on 15 April 2014, recognises ‘hijras’ (transgender people) as a third gender.

Sowmya, training officer for Humsafar and a transgender person, says: “Our community of hijras has at last been identified as human beings. As well as facing a high HIV risk, we often suffer violence at the hands of the police and discrimination from healthcare providers, who are afraid to treat us.” She is hopeful the recognition will bring improvements for the community.

But what this judgement means for Section 377 is not yet clear. Dr Prasada Rao, the UN secretary general’s special envoy for AIDS in Asia Pacific, says: “The UN believes very strongly that adult consensual sex must not be criminalised. With the Supreme Court granting third gender status to transgenders and eunuchs, giving them the right to express their sexual freedom, there is an inherent contradiction in criminalising consensual same sex.”

The Supreme Court has agreed to consider the plea for an open court hearing on petitions filed by gay rights activists against its verdict criminalising homosexuality. This will be listed in July when the courts re-open after the break.
Campaigners are now urgently seeking to mobilise a majority in the new parliament in favour of removing Section 377 for being archaic, repressive and unjust.

“The results of the elections are very important to us,” Gianni explains. “The BJP party spokesperson has previously spoken in negative although there are differences of opinion in the party. We need to urge the new leaders to stand up for LGBT rights and amend this draconian law. It is the need of the hour as extortion and blackmail cases have steeply increased since the judgement.”

For more information on campaigning against Section 377 visit: Voices Against 377 or follow the Lawyers Collective on twitter @LCHIVWRI

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Image: Gay rights activists during protest rally in Mumbai
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