Legal battle reflects a broader rights struggle

LGBT activists say fight was not only about Sec 377, but for wider freedoms, challenging power

NEW DELHI: Long before the current legal battle against Section 377 took off, a small collective called the Aids Bhedbhav Virodhi Andolan (ABVA) gathered outside Delhi Police headquarters in August 1992 to protest against police harassment of gay men in Connaught Place.

A year before, in 1991, the organisation had brought out a seminal report titled Less Than Gay: A Citizen’s Report. The report recognised the discrimination that arose out of one’s sexuality, and pointed out gay people the world over had been blamed for the spread of HIV/ AIDS. Within a few years, in 1994, ABVA would file a petition in the Delhi high court challenging Section 377 – the petition lay in cold storage for the rest of the decade, before Naz Foundation, a NGO working for HIV/ AIDS prevention, moved court in 2001.

ABVA’s impetus to connect the LGBT rights struggle with other marginalised groups was mirrored by activists and petitioners in the long legal battle. By 2006, a coalition of 12 human rights groups, concerned with child rights, women’s education and health, legal rights, and LGBT individuals , would intervene in the challenge against Section 377 .

Chayanika Shah, a member of Mumbai-based LABIA, a queer feminist collective, recalls getting into discussions around Section 377 back in the 1990s. “The discussions on child sexual abuse and the amendments to sections 375 and 376 (which dealt with sexual assault and rape) restarted,” she said.

Towards the end of the 1990s, another Mumbai organisation, The Humsafar Trust set up a pilot project for men who have sex with men to reduce HIV and sexually transmitted diseases in the community. This focus on health advocacy and service delivery was accompanied by a demand for civil rights.

Even the big breakthrough in the HC came when the National Aids Control Organisation (Naco) backed the Naz Foundation petition. “I’m remembering how when we started Voices Against 377, although we came together around the law, often in meetings we used to forget to talk about the law. What mattered was that we were starting conversations on queer issues, and especially on how queer was not the same as LGBT. That queer is about that which challenges ideas of normal and natural. That queer is that which challenges rigid categories of desires and of ‘us’ and ‘them’ and recognises the interplay of power and desire,” said Jaya Sharma, a Delhi-based activist and writer. In 2011, she was a founding member of Kinky Collective, a group which seeks to raise awareness about Bondage, Domination, Sadomasochism, and take forward the conversation on consent and desire.

Over the years, as the legal challenge to Section 377 winded through a maze of daily hearings and petitions, the LGBT movement branched out into diverse territories -- labour rights, Dalit rights, farmers issues and anticommunal struggles. Grace Banu, a Tamil Nadu-based transgender activist, recognised Thursday’s verdict wasn’t the end of the fight, especially for people who face discrimination not just for their sexuality, but also their gender, caste, and class. “As a community, we should educate our people and work towards recognising everyone as human,” she said.

For Dhiren Borisa, an assistant professor at Delhi University, the judgment was a cause for caution. “Many of us from smaller towns and villages, who do not have the right caste surnames will continue to hide, to be humiliated.”

Bengaluru-based Akkai Padmashali, a petitioner, pointed out many activists continue to be arrested in different parts of India and their voices silenced. “I have friends who died because they did not have space to express their gender, and sexuality. So this judgment has helped vindicate them. Today, I am not a criminal,” she said.

Many LGBT persons said they look forward to using the judgment to fight for civil rights, such as marriage, inheritance and adoption. “If equality is a fundamental right, then spousal right , the ability to get a partner to avail your medical and life insurance, the right to bequeath property, all of this should be next on the agenda,” said journalist Sunil Mehra, a petitioner.

But whatever lies ahead, Thursday finally meant closure for Arif Jafar, a petitioner who was picked up by police and tortured for 47 days in 2001, only for the crime of being gay. For everyday in the past 18 years, the 47-year-old activist carried the scars of abuse even as the case against him refused to wind down. He could hardly believe the judgment on Thursday. “It is unbelievable. I cannot imagine that this day has come. We can finally fight back, it feels like all this struggle was worth it.”