377: Episode 1

History owes an apology

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September 6, 2018—The Supreme Court reads down Section 377 of the Indian Penal Code, decriminalising homosexuality in India. Through the next 12 episodes, we’re going to examine the long journey behind the case and learn a bit about how our legal system works. 

Why is this case so important and what impact has it had on the rights of LGBTQIA+ Indians? What was at stake, and where did the battle even begin?

In the mid-90s, Anjali Gopalan learns that her work fighting HIV/AIDS and supporting human rights is coming up against a law—Section 377. She is trying to get medical attention to people at risk, but the police see her as enabling illegal activity. She realises the only way forward is to go to court and change the law.

Show Notes

All clips and voices used in this podcast are owned by the original creators.

The following guests appeared in this episode:

  • Anjali Gopalan, Naz Foundation India Trust
  • Ritu Dalmia, chef and restaurateur
  • Anand Grover, Founding lawyer, Lawyers’ Collective

References

Full transcript of Episode 1

I’d like to walk you through an important date. One that’s central to this podcast. September 6th 2018. 

Inside the sprawling campus of the Supreme Court of India, things are looking busier than usual.  Some people are pleading with security officials to let them into Courtroom number 1, others are milling about on the lawn, along with activist groups and television crews.      

News anchor: Here outside the Supreme Court, there has been excitement and anticipation since morning. Large number of people from the LGBT community, activists and lawyers have been gathering here, and there is a huge presence of media, everyone waiting for the final judgment…

The proceedings don’t start on time. The judges are held up elsewhere in the court, attending a tribute to two senior advocates. At 11.30 though, things convene and the court is ready. 

By now, people in the courtroom are aware that the five judges on the bench will deliver four different opinions. What this means, is that even if their verdict is unanimous, they might want to emphasise different parts of it.

Judgements aren’t just a yes or no statement. They can be referenced for years to come. Their words analyzed in future cases; they form the legacy of the court, so they’re very carefully considered.

The judges walk in. Chief Justice Misra opens. He says they’re all of concurring opinion, before he starts reading out the judgment. When people realize what he’s saying, they stifle smiles … they hold back tears … they squeeze the hands of their loved ones… 

They’re trying really hard to maintain the kind of decorum that you would expect in a courtroom. Outside though, people (just) erupt into cheers!

News anchor: A lot of tears, that is really really moving, you know, the way people celebrated, burst out in cheers, but what I’m seeing right now is tears in almost every eye, in every person.

News anchor: …from Supreme Court, the big headline at this point is that Section 377 is arbitrary, the LGBT community possess rights like others. Majoritarian views and popular morality cannot dictate constitutional rights…

Interviewee: It’s a long journey, it’s a long journey.

The case is Navtej Singh Johar and others vs. the Union of India. The highest court in the country has just decriminalized gay sex by reading down a law—Section 377 of the Indian Penal Code can no longer apply to adult, consensual relationships.

Inside the courtroom, four of the five judges read from their opinions. The last to go is Justice Indu Malhotra, and she reads just one paragraph from her 50-page opinion.

“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries…

“The members of this community were compelled to live a life full of fear of reprisal and persecution. This was on account of the ignorance of the majority to recognise that homosexuality is a completely natural condition, part of a range of human sexuality.”

Keshav Suri: “As far as the judgment is concerned, I don’t think it gets better than this. You have the judges turning around and saying that we need to apologise to the LGBTQ community. Our community has been tolerating injustices across the country, and for 70 years…”

That’s Keshav Suri, one of the petitioners in the case, talking on the day of the verdict.

History owes an apology. If you’re familiar with the case, you’ve probably heard this phrase a lot. 

After decades of mistreatment and legal back and forth, here was an acknowledgement of everything the queer community had suffered. The Supreme Court had said those words out loud. It felt like vindication.

I kind of see Justice Malhotra’s quote as the flagship phrase of the judgment. And that’s a big deal. There were 500-pages of lyrical, poetic language and this was the mic-drop, tear-to-your-eye moment.

In this podcast, we’re going to look at this history—where the law came from, how it made life very difficult for a lot of people, and why challenging it was so important. We’ll meet lawyers and activists and see how they fought to ensure history didn’t repeat itself. 

It didn’t happen overnight, and things didn’t always go to plan, but this is a story that shows us how our legal system works, and what we can learn from it for the future.

From ATS Studio, I’m Sindhuri Nandhakumar and this is 377 —  a show about a very specific law, its outsized impact on Indian society,  and the movement to get rid of it 

*

We could start in 1860—that’s when Section 377 first came into effect. 

Or 1947 — 

Nehru: At the stroke of the midnight hour, when the world sleeps, India will awake to life and freedom…

The young republic of India was born. The promise of a new beginning, a sense of freedom from the British. But even though India became a country of its own, colonial influence hadn’t gone away. The railway remained, the language stayed back, and so did British laws. Namely, the Indian Penal Code.

But, I’m going too far back. Today, let’s go back to the 90s, because I’d like to learn more about just what is so disturbing about (Section) 377.

Anjali Gopalan:
So hi, I’m Anjali Gopalan. And  I work with the Naz Foundation India Trust, which is an HIV/Aids service organization.

Anjali has a pleasant, smiling face, a crop of short curly hair, mostly grey. Our calls were always punctuated by dogs playing in the background. She loves animals — she runs an animal sanctuary. She’s even brought her great Danes to pride marches in Delhi.

In the mid-1990s, Anjali came home from the US to visit her family in Delhi. She noticed her parents were looking older than she remembered, and she decided to move back to be with them. With their support, she set up the Naz Foundation, a public-health advocacy group that ended up playing a very important role in the decades-long fight against 377.

Anjali started as a counsellor. She helped young gay men struggling with their sexuality. She met a lot of them through her work fighting HIV/AIDS. 

But it wasn’t easy work. 

Anjali:
I remember once this guy called me — because I had helped his brother who was gay. He actually said this in Hindi. And I’ll have to say it in Hindi because it’s too funny to say, and then I’ll translate it. But basically he said, “mein tumhe utwa lunga” That means I’ll have you picked up and I said, “Listen, mein uthane wale chees nahi hoon”. So my response to him is “you haven’t seen me I can’t be lifted.”

So it was hilarious, you know, and then my parents freaked out and said, “No, no, you must go to the police and tell them.” So just to make them happy, I did go to the cops and the cops said, “Where have you put your hands into? This guy has eight murder cases against him.” So I said, “Let’s not worry about it, and definitely let’s not tell my parents about it.” But of course these kinds of things happen. It’s so crazy, no?

Anjali brushed off the threats. Because she felt it was worth it—trying to help people who felt trapped by their own families. Even after counselling, most families would still tell their sons, “Get married, have a couple of kids, then do whatever you want in your spare time.”

Anjali:
So then, when they realized that I was not telling the sons to become straight and not telling their sons to get married, they would forbid their sons from coming back to us for any kind of intervention. So I would put it out of my head because that’s how it was.

Until one day, putting it out of her head didn’t seem like an option anymore. A young man she’d counselled before came back into her office.

Anjali:
So you know how sometimes you see someone and your heart stops, because you know, something’s terribly wrong. So what happened? He said, “Well, I’d come here about a couple of months ago, and my parents didn’t let me come back here. But they did take me to one of the major hospitals in Delhi”, where he had been administered shock treatment to make him straight. 

So I think that’s what pushed me over the edge. I said, “Okay, now, something has to happen. This is beyond belief…ridiculous.”

If you’re thinking, ‘that was the 90s, a different time’, there is evidence that conversion therapy continues well into the 21st century.

News Anchor:
Our reporters visited these doctors for ‘gay cures’ and they were quick to oblige, prescribing nausea-inducing drugs, testosterone, or even shock therapy. This, despite medical experts and studies reiterating that there is absolutely no scientific merit to any gay cure treatment.”

Interviewee: We put them on proper medication. Definitely, after 3 to 4 months of taking medication, the patient is improving, the symptoms are improving, and I had seen number of patients, who were total homosexual guys, marrying and having children.”

*

India’s history with queerness • is long. It’s diverse. It covers the length and breadth of the country. It’s in religious texts. But modern India sees gayness as an urban problem. Imported from abroad, pooh-poohed by religious leaders. In fact, Baba Ramdev called homosexuality an American disease.

Baba Ramdev:
Prem ka sambandh, sex nahi hai. Sex toh productivity ke liye hai, mein karoron logon se pyar karta hoon, iska matlab kya mein sex karta hoon? Galat baath hai yeh sab…

…yeh America se bimari chali hai, jo hai, freedom ke nam par, swatantrata ke nam par uchaaree karta hai…

Years after Anjali started her battle against 377,  he even tried to pin some blame on her.

Anjali:
Baba Ramdev once told me, “Women like you are responsible for the deterioration of the moral values in this country.” So I, of course, told him I take that as a compliment

So, the day after she hears about the shock treatment of the young man, Anjali goes to the National Human Rights Commission to file a complaint.

Anjali Gopalan 
So the next day, actually, I went to the National Human Rights Commission to file a complaint. And they refused to file a complaint saying that this was a criminal activity, because section 377 criminalizes homosexual activity.

Turns out, not only is gayness a disease, it’s also a crime to have this disease. And even an organisation like the Human Rights Commission can’t do anything to help people with this “disease”, because, again, having it is criminal.

Section 377 loomed large. It was like a sword hanging above your head, always there, ready to be used as a tool of blackmail, extortion or violence. And if you hadn’t been affected by it directly, there’s still the feeling of being seen as a criminal.

Ritu Dalmia:
And it was, how shall I say it just felt so wrong. I mean, I pay my taxes, I pay a lot of taxes, I have made this country proud. I mean, I have taken this country given a lot of international recognition in my field. And even then I am considered as a criminal in the eyes of the law. 

That’s Ritu Dalmia, one of India’s most renowned chefs. Even though she never considered herself an activist, Ritu would go on to put her name on a petition that aimed to decriminalize homosexuality.

In an interview on Aamir Khan’s talk show Satyamev Jayate, Gautam Bhan, an equal rights activist, talks about how the problem with Section 377 is that, by labelling your feelings unnatural, it tells you what to think about yourself.

Aamir Khan asks, “Where did this law come from?” “It’s from 1860” “So the British brought it? Yes. And have they changed their laws?” “50 years ago.” “50 years ago they changed their own law? And we’re still stuck with it?”

* 

In India, the first challenge to Section 377 came in 1994. That’s when a human rights organisation based in Delhi, AIDS Bhedbhav Virodhi Andolan (the AIDS anti-discrimination movement), filed a petition in the Delhi High Court challenging the constitutionality of the law. But the case languished in the legal system and never actually went to trial.

In 2001 however, Anjali joins the fight. She also files a petition, in the Delhi High Court again. That’s the journey—long, messy, arduous—that brings us to 2018.

For Anjali, the trigger to go to court was the shock therapy incident. But, well before that, soon after she started the Naz Foundation in 94, she’d already found Section 377 to be a problem. It kept getting in the way of her work fighting HIV/AIDS.

Anjali:
We started our work with the MSM community, and it was very much in the context of HIV prevention in 1994, towards the end of 1994. 

MSM: that’s men, who have sex with men. In the context of HIV, MSMs are considered ‘key’ populations because they’re at a higher risk of contracting it. As a virus, AIDS was first identified in the 80s. And it was associated with the gay community because of high rates of transmission, from unprotected anal sex. News reports from the time even called it “gay cancer”.

News anchor:
…which shows that the lifestyle of some male homosexuals has triggered an epidemic of a rare form of cancer.

Even though gay men were at higher risk, it wasn’t because of anything intrinsic to homosexuality. It was an outbreak, and therefore tended to spread within that community. Even though doctors knew the connection was coincidental, that knowledge hadn’t spread and there was still a lot of stigma against gay men. Dr Anthony Fauci, the head of the US task force against Covid, was also a big figure in the fight against HIV. Here’s a clip of him explaining it.

Anthony Fauci:
Now, you keep getting asked, why the male homosexual population? …Since male homosexual individuals almost invariably, not always, confine their homosexual activities, or their sexual activities, to other male homosexuals, what you are going to have is a compounding and a spread within that group. There’s nothing intrinsic about homosexuality that would make them susceptible to the disease.

Back in India, Anjali was reaching out to key populations to help with prevention. And for gay men, this could be as simple as handing out a condom or setting up a quick consultation with a doctor.

Anjali:
So I remember when we used to do outreach… at the time, I used to do outreach myself in parks and toilets, that’s where sex was happening. I had a doctor friend — he would come along with me and he would treat people behind bushes because they refuse to go to doctors. 

But it wasn’t easy. There was a law standing in her way.

Anjali:
And so you can imagine at that time, how much worse it was, and then working with the police, getting them to allow us… because one of the biggest problems we faced was, outreach workers would constantly get hauled into police stations, saying that’ you’re promoting an illegal activity by giving out condoms and talking about these issues publicly’, so we were getting increasingly frustrated, but still hadn’t really thought of how we should try and, and deal with this barrier.

When she and the Naz Foundation finally planned the petition against the law, they weren’t the only organisations calling for the law to go.

Anjali:
So there was just Humsafar Trust and there was us doing this.

Humsafar Trust, founded by Ashok Row Kavi, one of the first people to openly come out as gay in India, and founder of Bombay Dost, a gay-issues magazine.

Anjali:
And I remember speaking with Humsafar Trust, with Ashok, who basically said, ‘Look, we can’t stick our neck out at this point, but you can, because you are not a gay organization. You are an HIV…, which is why we used the HIV argument to put our foot through the door.

Because that was one of the things that was, you know, to do the HIV interventions, you needed groups to be able to do that. So that’s how it happened. So people tend to forget how closely HIV actually impacted the work that we did.

By standing in the way of HIV prevention, 377 was denying people their right to a healthy life. The shock therapy incident and the National Human Rights Commission’s response to it drove that point home very strongly for Anjali.

Anjali: 
My understanding of the importance of going down the legal route was when the Human Rights Commission refused to file that complaint. At that point, I felt very strongly that we had no choice but to go down the legal route. I think for me, it was very clear at that time.

So, legal route. That means lawyers. By this time, Anjali’s line of work had already brought her into contact with the Lawyers’ Collective, an organisation founded in the 1980s. They had a dedicated HIV/AIDS unit, and fought a lot of public interest litigation cases. They also wanted to mount a plan of action against 377.

Anjali:
So that’s when I think Lawyers Collective also had started dealing with a lot of issues for gay men and and that’s how we connected and it’s been incredible because thet fought the case pro bono. They have been incredible in the way they have included community in discussions right throughout this process. They really did put their necks out on the line I feel.

And that’s how she started working with Anand Grover, the founder of the Lawyers’ Collective. A man who’s fought drug companies for anti-cancer drugs to be widely available, who despite initially thinking AIDS was CIA propaganda, learned all he could and defended the safety of people affected by it. Someone who believes physical and mental health is a fundamental human right, and who has regularly stood up in courts to secure that right for everyone.

Anand Grover:
All courts are intimidating by their, the way they’re actually structured…because of the way the building is structured. The way the attire is worn, the way the judges sit at a pedestrian and they look down on you. So it’s an intimidating experience for a layperson. But for lawyers, they’re used to it, they get a thrill out of it. And for a person like me, I mean, as a lawyer, I get a thrill in arguing. There’s the adrenaline rush.

Next time, we’re gonna talk to Anand a lot more. And over the season, we’ll delve into the history of the movement… how HIV was just the start of a fight for equal rights. How that fight had its own criticisms, disputes. How it led to September 6 — the day the Supreme Court apologized. 

Credits

Episode hosted – Sindhuri Nandhakumar
Written by – Sindhuri Nandhakumar & Ashim D’Silva
Producer – Ashim D’Silva
Executive Producer – Gaurav Vaz

Script Supervision and Editorial input – Devaiah Bopanna, Archana Nathan,  Sidin Vadukut and Supriya Nair. 

Music & sound design – Madhav Ayachit
Mixing & Mastering – Ankit Suryakanth

Legal Consultant – Amshula Prakash.
Administrative support –  Anushka Mukherjee.

All clips and voices used in this podcast are owned by their original creators.