When the Delhi High Court ordered the decriminalisation of gay sex in July the credit went to HIV/AIDS activists seeking a better deal for those living with the virus.
By Sandhya Srinivasan
The July 2, 2009 ruling that declared Section 377 of the Indian Penal Code IPC), which criminalised homosexual behaviour, unconstitutional, was prompted by public interest litigation filed in 2001 by the Naz Foundation, an organisation that works closely with people living with HIV/AIDS (PLWHA).
With its assertion that the law discriminated on the basis of sexual orientation and violated fundamental rights, the judgement was a victory for lesbian, gay, bisexual and transgendered organisations which had for years been campaigning against section 377 of the IPC.
“HIV activism opened the door for challenging the law on other grounds,” says Anand Grover, director of the Lawyers Collective HIV/AIDS Unit (LCHAU), who fought the case on behalf of NAZ Foundation and other petitioners. Grover, who is director of the Lawyers Collective’s HIV/AIDS Unit , and currently UN Special Rapporteur on Health, notes that the campaign leading to the judgement also reflects the role that HIV/AIDS activism can play in larger human rights issues by supporting community mobilisation of marginalised groups. It was in the course of their legal work on discrimination related to HIV that the collective started recording stories of gay men being harassed and abused on the grounds of Section 377, and decided to challenge the constitutional validity of this law.
Staff of the Naz Foundation, and other organisations working with gay men, who regularly faced harassment by the police found themselves on the wrong side of an archaic law.
The petitioners persisted through two rejections by the high court and appealed to the Supreme Court which sent the matter back to the high court for a final decision. They were joined by ‘Voices against 377’, a coalition of groups campaigning against the law.
Eventually, after hearing all the arguments, Chief Justice A P Shah and Justice S Murlidhar of the Delhi High Court declared that Section 377 “insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 14, 21 and 15 of the Constitution.
They declared: “In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs (lesbian, gay, bisexual and transgendered) are. It cannot be forgotten that discrimination is antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
LGBT groups have led a sustained battle on this issue, says Ashok Row Kavi, founder of Humsafar Trust, a community-based organisation working with gay men and transgenders in Mumbai. “It was a campaign for the poor and working class who were most affected by the harassment, violence and blackmail by the police, the threat of being jailed, and the resulting stigma and discrimination in health care as well.”
Access to health care itself is a human rights issue ,’’ Kavi points out. ‘’It can also be a point of departure for raising related human rights issues, combating human rights violations that undermine health care programmes.’’
The petitioners’ case was strengthened by the support of the National AIDS Control Organisation (NACO) which argued that Section 377 prevented the conduct of essential public health programmes..
NACO testified that Section 377 discouraged a marginalised section of the population from seeking essential healthcare including care for HIV. “Enforcement of Section 377 can adversely contribute to pushing persons suffering from HIV underground which would make such risky sexual practices go unnoticed,” the NACO affidavit stated.
The law had effectively denied access to prevention programmes, male homosexuals in India have an HIV prevalence of 6%, compared to 0.36% of the general population.
“I think many of us acknowledge that the activism around HIV assisted the Repeal Sec 377 campaign a great deal,” says Vinay Chandran, executive director of the Bangalore-based Swabhava Trust which works with sexual minorities Chandran points out that the Naz petition went beyond the health context by citing the rights to privacy and dignity. The final judgment acknowledged these issues and also cited consititutional morality as an important decider.
Opposition to the petition came from the home ministry which in an affidavit stated: “Indian society strongly disapproves of homosexuality and disapproval is strong enough to justify it being treated as a criminal offence even where consenting adults indulge in it in private.”
India’s law minister Veerappa Moily has described the judgement as “well documented and well researched”. And on September 16, the Indian government stated that it would not appeal the high court decision but leave it to the Supreme Court to decide. By doing so, the government signalled its changed views – it supports decriminalisation but, for political reasons, does not want to declare its stand.
The campaign and litigation has brought to light the role that can be played by HIV/AIDS health care advocates in community mobilisation against human rights violations, especially of the poorer and marginalised groups. “The rich didn’t need the law. The poor faced violence, blackmail, extortion and threats,’’ says Kavi. UN organisations supported the campaign by assisting the Lawyers Collective file the petition and by helping to mobilise civil society organisations and organising sensitisation meetings with members of the judiciary and politicians.
MSM are one of three core groups in the AIDS epidemic who are criminalised, says Kavi. Indeed, the high HIV prevalence among sex workers (4.9%) and injecting drug users (6.92%) underlines the urgency of amending laws or changing their implementation.
“The fundamental issue in all these cases is the criminalisation of private practices – essentially a rights issue,” says Grover. “Community activism has focused on demanding decriminalisation - we are looking for immunity for people working in the field.”
HIV activism finds itself up against the Immoral Traffic (Prevention) Act which is routinely used to harass sex workers. This also limits their access to peer education and condom distribution programmes.
“HIV has opened several doors,’’ says Grover. ” Earlier, no one would talk about sex. To prevent the spread of HIV, people had to talk about sex and sexuality. Now it has opened the door for community activism with marginalised groups.”
Panos Talking Point, February 2010