Varta: Preparing for Section 377 verdict

Insight, Happenings, Dec '13

Arka Sarkar and Prithviraj Nath report on Kolkata Rainbow Pride Festival’s community meeting on being prepared for the imminent Supreme Court verdict on Section 377, Indian Penal Code

Kolkata, November 9, 2013: An evening full of informative presentations, thought provoking comments, and lively quips – this was the third adda of the Kolkata Rainbow Pride Festival (KRPF) collective at the Academy of Fine Arts. Chaired by KRPF member Pawan Dhall, the key speakers were Mumbai-based Anand Grover, counsel to Naz Foundation (India) Trust for the public interest litigation against Section 377 in Delhi High Court; Kaushik Gupta, advocate and sexual rights activist from Kolkata; Sandip Roy, queer activist, writer and former Editor of the USA-based Trikone Magazine, the oldest surviving South Asian queer initiative worldwide; Zaid Al Baset, researcher on gender associated with the Centre for Studies in Social Sciences and faculty, St. Xavier’s College, Kolkata; and Dr. Ujjaini Srimani, Kolkata-based mental health professional, who also works closely with city-based queer support groups.

The adda in session. All photo credits: Vahista Dastoor

Pawan Dhall started the proceedings with an outline of the adda (community conversation). He explained that the objective of the event was to inform and prepare the lesbian, gay, bisexual, transgender and other queer communities of Bengal, their supporters, and others interested to the strong possibility of the Supreme Court announcing a verdict in early December 2013 on the matter of the July 2009 Delhi High Court reading down of Section 377. He introduced the speakers, each of whom spoke for 10-15 minutes, following which the floor was opened to audience interaction.

Given the considerable anticipation about the verdict, the event did not focus just on discussions. It also attempted to arrive at concrete steps to be taken at the community level before and after the verdict was announced, keeping in mind the various possibilities about the likely content of the verdict. The discussants, each in their own way, tried to provide direction on the potential action to be taken on not just the legal front, but also community education, health, research and media advocacy.

Anand Grover, who is also Special Rapporteur to the United Nations on the Right to Health and associated with the Lawyers Collective – HIV/AIDS Unit (LCHAU), spoke about the history behind the petition filed against Section 377 in 2001. He talked about important legal victories won by LCHAU in cases of human rights violations against people living with HIV in Goa in the 1990s and how these inspired the Section 377 petition. Numerous complaints of abuse, blackmail and harassment faced by queer people motivated LCHAU to take up the petition on behalf of Naz Foundation (India) Trust. Later, Voices Against 377, a civil society collective, also joined Naz Foundation (India) Trust as co-petitioners.

Speakers Anand Grover (with the microphone)
and Kaushik Gupta

The Delhi High Court ruling on Section 377 (revising it to decriminalize all sexual acts between consenting adults in private) was based on the grounds that it was an archaic and colonial law that violated Article 14 (equality before law), Article 15 (non-discrimination on the basis of religion, race, caste, sex or place of birth) and Article 21 (protection of life and personal liberty) of the Constitution. While hailed by and large as a progressive ruling in many quarters, it was also criticized for dwelling on the issue of privacy in narrow spatial terms.

Of course, the ruling had strong detractors among religious groups and some civil society and political formations. Several petitions against the ruling were filed in the Supreme Court, though notably none by the Government of India (earlier too the government favoured revision of Section 377 on grounds that it was a barrier to provision of life saving HIV services among males who have sex with males and male-to-female transgender populations). Supportive petitions by mental health professionals and parents of queer people were also filed. The Supreme Court finished hearing all arguments in the matter by March 2012, and since then a final verdict was awaited. Anand Grover was happy to note that all through this, the queer communities across India managed to overcome their differences and stick together in their struggle for legal reform and decriminalization.

He added that the queer communities were extremely fortunate that the Delhi High Court bench that had delivered the Section 377 ruling consisted of Justices A. P. Shah and S. Muralidhar, both very progressive individuals and well sensitized to gender and sexuality concerns through considerable orientation and sensitization efforts undertaken by LCHAU over the years. He recounted that all along, though the odds seemed heavily in favour of status quo, he was optimistic that Section 377 would eventually go. A senior advocate once told him: “Har cheez ka waqt hota hai, iska waqt ab aa gaya" (There is a time for everything, the time for change around Section 377 has come).

At one point of time the Delhi High Court even dismissed the petition against Section 377 on technical grounds. But after the Supreme Court directed it to reconsider the petition, two factors proved instrumental in convincing the Delhi High Court for a rethink on the law. First, the petitioners succeeded in arguing that Section 377 was part of a colonial legacy that went against the inclusiveness and openness of Indian culture to gender and sexual diversity. The precedent of the Criminal Tribes Act of 1871 was highlighted. Thanks to this law, communities like the Hijras, who once enjoyed the pride of place in Mughal courts, were criminalized overnight by the British. Fortunately, this law was repealed at the time of independence, but Section 377 carried on.

Second, it was explained that the text of Section 377 was such that it applied not just to queer people, but also to heterosexually oriented people who practiced the so called ‘unnatural’ non penile-vaginal sex. This aspect of the law struck the court as especially wrong.

Speaking about the much awaited Supreme Court verdict, Anand Grover said that Justice G. S. Singhvi, one of the judges in the bench hearing the Section 377 case, was likely to retire soon (Justice S.J. Mukhopadhyay being the other judge). Chances were bright that Justice G. S. Singhvi would want to complete pending work and read out the Section 377 verdict before he retired. Elaborating further, he outlined the various possibilities with regard to the verdict – details can be seen in the inset.

Anand Grover added that if the Supreme Court did not uphold the Delhi High Court ruling, it would be in the bad books of the media, which was quite supportive of queer concerns. An adverse ruling would also land the court amid more than one contradiction. For instance, in a petition filed by the National Legal Services Authority (NALSA), the Supreme Court seemed inclined to grant legal recognition to gender identities other than ‘man’ and ‘woman’, that is, to a separate class of people in relation to their gender identity and sexuality.

Again, the Protection of Children from Sexual Offences Act 2012 now made it possible to legally pursue all cases of child sexual abuse, whether against girls or boys, under a law specifically meant for the matter. There was no longer any need to take a roundabout recourse to the ‘unnatural sex’ proviso of Section 377. This made Section 377 further redundant.

If in spite of all these factors, the Supreme Court did not uphold the Delhi High Court ruling, there would be the option of filing a review petition within a month of the verdict. But the review petition would go to the same judges who delivered the verdict, and it would be unlikely that they would come up with a different verdict. In that case, a curative petition could be filed with a bench of the three senior most judges of the Supreme Court.

Quoting Vladimir Lenin, Mahatma Gandhi and Martin Luther King, Anand Grover said “The day might come but it might not be in my lifetime”. He said for the time being, there was no need for the queer community to worry about winning but to believe in their cause. On the day of the verdict, people should assemble at a public place in large numbers either for a grand celebration or for a vocal and articulate protest. The state and larger society must realize that they cannot dictate intimate matters of gender and sexuality to people.

Kaushik Gupta caught in the camera

Kaushik Gupta struck an extremely optimistic note in saying, “No defeat is final till you stop trying." Broadly in agreement with Anand Grover on the matter of Section 377, he added that Sections 292, 293 and 294 of IPC, which talk about obscenity, should also be the focus of attention. The term ‘obscenity’ was not clearly defined, which was dangerous. He cited the examples of two eminent Bengali writers, Samaresh Basu and Buddhadeb Guha, who at one time were charged with obscenity in their writing. The court, however, concluded that the content of the books could be vulgar but not obscene and thereby not punishable under law.

According to Kaushik Gupta, this stand of the court was similar to that of Delhi High Court, which in its ruling differentiated between ‘social’ and ‘constitutional’ morality. But India’s obscenity laws did not seem to be discerning in this regard, and the queer communities could be particularly vulnerable to the ‘misuse’ of these laws. It should be noted that Article 19 of the Constitution talked about the right to freedom of speech and expression, but this was not an absolute right. Obscenity laws could take precedent over Article 19 in certain situations. So this was another potential area of legal research and seeking legal reform, irrespective of the Supreme Court verdict on Section 377.

Sandip Roy makes a point

Sandip Roy pointed out that even USA had an anti-sodomy law somewhat similar to Section 377 till as recently as 2003. It was the ruling of the Supreme Court in the landmark Lawrence Versus Texas case that brought about an end to this law (see http://en.wikipedia.org/wiki/ Lawrence_v._Texas). But he warned that legal changes kept happening and attempts to bring back negative laws against queer people never stopped. Also, police harassment could take up new forms. In 2011, people in places like Louisiana in USA experienced harassment under the erstwhile anti-sodomy law, where the police pretended to be unaware about the change in law. But the police always tell ordinary citizens that ignorance of the law is no excuse. Civil rights groups said the same should apply to the police. The harassment stopped after the media exposed it.

Sounding a note of optimism on the Section 377 verdict, Sandip Roy added that if there was a verdict in favour of the Delhi High Court ruling, queer support groups should not stop at celebrations. They must inform everyone ‘on the ground’ so that the meaning and impact of legal reforms percolated to the citizenry at large.

Zaid Al Baset took the discussion to a level different from legal matters. He recounted a classroom session he took on marriage at the college where he taught. The definition of marriage was provided as a union of two individuals rather than two people of opposite sexes as stated in standard sociology textbooks. Initially, he got no controversial response, rather no response at all. But on further questioning three responses were forthcoming:

A football player argued why would boys want to have sex with boys when girls were so pretty

Another student said he had queer friends and was alright with their sexual or gender orientation but when asked about having queer children, he seemed uncomfortable

A third student said he was fine with everything but did not know why, which might have been because he just wanted to be politically correct

Zaid Al Baset and Dr. Ujjaini Srimani

Zaid Al Baset said these were responses from students mostly from well-to-do backgrounds, and were indicative of where the understanding around gender and sexuality was in sections of society that had access to the best of education.

He also brought the focus on to a problem with the Delhi High Court ruling on Section 377. In the context of privacy, the ruling constantly made references to the concepts of ‘home’, ‘family’ and ‘children’, a rather patriarchal take on things. This he felt limited the scope to define and respect privacy in broader terms, say, the privacy of a person listed on a gay dating website like PlanetRomeo. What about the right to be public about one’s gender or sexuality, the right to be oneself without being judged, he questioned. In fact, it was actually more important to be public about asserting one’s constitutional rights. For example, queer people who appeared different from the so called gender norms should not have to think twice about being seen in public as they were. And why many queer individuals did not ‘come out’ as queer was probably not because they were waiting for the Supreme Court’s verdict on Section 377 but because of the fear of non-acceptance.

Whatever be the verdict, Zaid Al Baset felt the Indian queer movement should move out of the comfort zone of pride events and conferences (though even these were rare at one time and were hard fought gains). He suggested that the queer support groups should focus on community education around gender and sexuality, and connect their concerns with larger issues of gender-based violence and gender equity.

Dr. Ujjaini Srimani

Dr. Ujjaini Srimani said in the beginning she was not sure why she had been invited to an adda on a legal matter. On reflection, she realized that a doctor or a mental health professional must be involved in legal matters. Given our social situation, there were two stakeholders who willy-nilly got involved with anything related to sex, gender and sexuality most of the time – the police and doctors. In fact, a doctor wielded immense power in such matters and could either make or break a person. And yet there were few doctors capable or comfortable enough to deal with gender and sexuality diversity.

Stigma against non-normative genders and sexualities was rife in government hospitals, which did not even practice basic norms of client confidentiality in such matters. Speaking about queer support group Sappho for Equality’s efforts to dialogue with doctors (including mental health professionals, gynaecologists and plastic surgeons), Dr. Ujjaini Srimani said many of them shied away from talking about queer issues. Their usual excuse was that they did not receive a substantial number of queer clients. But the fact was that such clients were often advised to conform to social norms or consoled that their gender identity or sexual orientation was probably a passing phase. In such a scenario, most doctors were either not aware about Section 377 or not interested in learning more about it.

She anticipated that if the Supreme Court upheld the Delhi High Court ruling, it would lead to greater social anxiety and more parents and ‘moral gurus’ would land up in doctors’ chambers asking them to ‘save the situation’. It was therefore crucial for queer support groups to shed their inhibitions and engage doctors and health care institutions in more and more collaborations to sensitize them to queer health and development concerns.

The session on audience interface with the speakers saw a wide range of questions and comments. The potential for India’s sexual assault laws to cover same-sex rape was discussed. One person in the audience wondered if the Supreme Court was hesitating in announcing the verdict because it was linked to the Lok Sabha polls slated for 2014. NALSA’s petition in the Supreme Court seeking equal rights for transgender people was discussed in greater depth. The speakers also delved briefly into why the British rulers of pre-independent India passed progressive laws like the widow remarriage act on the one hand but introduced draconian ones like Section 377 on the other.

All the speakers were gifted copies of Out! Stories from the New Queer India, a recent anthology edited by Minal Hajratwala and published by Queer Ink, Mumbai. The concluding remarks of the adda were provided by KRPF member Rudra Kishore Mandal: “Rather than waiting for others to help us, we should help ourselves.”