Naz Foundation has officially filed a petition in the Delhi High Court. But not everyone within the community was pleased with the process. Apart from the opposition in court, Anjali and Anand also faced criticism from the wider community on how they had handled the filing.

Was this the correct angle to use, and were they even the right people for the job? Was petitioning with HIV rather than equality going to have a lasting impact on sexual rights?

We go through some of the criticisms of the approach and what was done to make future discussions more inclusive.

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
• Arvind Narrain, human rights lawyer
• Vivek Divan, lawyer
• Anand Grover
• Dr Ashley Tellis
• Anonymous member of LABIA, a lesbian and trans community (referred to as Vidya)
• Dr Sumit Baudh, Dalit scholar and member of the Voices against 377 coalition 
• Siddharth Dube
• Jaya Sharma

References

• News clip of celebrations after July 2009 Delhi High Court verdict: https://www.youtube.com/watch?v=bjyv5X8uw_s
• Excerpt from an interview with Arif Jafar, from the film Many People Many Desires by T Jayashree, courtesy of QAMRA
• Community consultation meeting minutes, courtesy of Orinam

Full transcript of Episode 4

In 2009, there was a huge win for India’s queer community. Things went south after that, but for this episode, we’re just going to focus on what happened leading up to that time. 

In 2001 public health activist Anjali Gopalan filed a petition in the Delhi High Court. She knew that her request was very ambitious.

Anjali Gopalan:
The fact that it has happened…. Somehow, while we were going through this process, on and off, I used to feel that maybe in this lifetime, I won’t see this happen. 

But it did happen in her lifetime—back in 2009, two judges of the Delhi High Court: Justice AP Shah and Justice Muralidhar, delivered a verdict that stunned Anjali and many others. It was considered unusually progressive and way ahead of its time.

News anchor:
Celebrations on the streets of New Delhi. People here are rejoicing over High Court ruling legalizing homosexual sex between consenting adults. It’s a monumental moment in Indian law…

Anjali:
One of the best judgments, I think, written in this decade, if you read that judgment, it was incredible.

The two judges ruled that Section 377 of the Indian Penal Code violated Articles 14, 15 and 21 of the Constitution. Those are the guarantees of dignity, equality and freedom from discrimination. I spoke with Arvind Narrain, a human rights lawyer who was a part of the litigation. And he echoed Anjali’s sentiments:

Arvind Narrain:
When we were arguing for the Delhi High Court, I mean, I would have said that, you know, we were not going to get rid of 377 in my lifetime. There’s no chance. We’re making the argument for a future time, it’s not for today. We’ll lose, but through that will generate a public discussion and discourse and that has its own value. So the repeal of 377 was not an idea whose time has come. 

This is what made the judgment incredible. It seemed like the time had come for the repeal of 377. Now, that victory wouldn’t last for long, but in 2009 at least, there was a reason for the LGBTQI community to celebrate.

From ATS Studio, I’m Sindhuri Nandhakumar, and this is 377. A show about an outdated law, its lingering impact, and the movement to get rid of it.

In our previous episode, we talked about the history of 377 — how this anti-sodomy law made its way to India. How it survived for more than a century, policing the lives of citizens. How it got in the way of HIV prevention and made gay people criminals. 

Arif Jafar:
Hum log ko jis sections mein book kiya gaya tha woh 377 (120B): conspiracy to promote homosexuality…

If you weren’t arrested, the threat of the law was wielded against you like a baton. 

So in 2001, Anjali Gopalan decided to go down the legal route. The law was getting in the way of her work in HIV prevention. She couldn’t encourage safe sex practices, or distribute condoms, because gay sex was considered criminal. 

This petition is what led to the verdict of 2009. But it wasn’t straightforward. Anjali was taking on the government. And the government tends to have quite a few supporters in its corner.

All kinds of people stepped up to fight against Naz. Former BJP politician BP Singhal,  Joint Action Council Kannur, which believed that AIDS was a big pharma conspiracy, religious organisations who thought homosexuality was a sin,  child rights groups who thought gayness was somehow linked to paedophilia….

But there were also criticisms from within the community. This came from other public health groups, but also child rights groups, feminist groups, parents of LGBTQ people, and of course, LGBTQ folks themselves. And in a way, this discord is what led to the movement becoming bigger. It led to discussion, community engagement and more dialogue. And that helped broaden this case from one about public health to one about fundamental rights.

So let’s go through some of these criticisms—there were quite a few. Soon after the Naz petition was filed, a group of LGBTQI activists and HIV/AIDS organisations circulated a letter. They objected to parts of the petition. They talked about how they hadn’t been consulted, even though they had been working in the same field for a long time. 

Vivek Divan:
So you might have read, but we got a backlash from within the community, surprisingly, why didn’t you consult us? Why did you peg this as an HIV case? Who are you in the first place? You know, we all have a place at the table. social change leads to legal change and not legal change to social change. 

That’s Vivek Divan, a queer lawyer. He used to head the Lawyers’ Collective’s HIV/AIDS Unit. He was very involved in the community mobilization that happened around this case.

Vivek:
So various arguments were placed. And it was very surprising for us, because we didn’t expect this sort of a response. 

Let’s talk about these criticisms one by one. Now, just to be clear, we don’t have any good answers or solutions to these criticisms. They’ll probably be discussed for a long time to come, and they’re not unique to 377—maybe they can help give us a glimpse into how we can think about advancing rights in other movements.

Criticism 1: 

Who are you to do this? 

Some people didn’t believe that the Naz Foundation, a public health organisation, was the right group to take up a case that persecuted gay men. Anand Grover admits as much:

Anand Grover:
But there was this feeling I think, that Naz Foundation was not a gay rights organization, and why should they be leading the process? I must honestly admit that there was this feeling amongst some people. But that was how it was.

The previous attempt to overthrow 377 had been taken up by the AIDS Bhedhbav Virodhi Andolan, a much more diverse group of people from all walks of life. So Naz seemed like an outsider. Coming at it through their own struggle rather than those of the community.

I spoke with Dr Ashley Tellis, an academic and LGBT activist. He’s written a lot of scathing articles about how the Naz Foundation ‘hijacked’ ABVA’s original campaign against 377. This case, he said, was largely ‘NGO-driven’:

Ashley Tellis:
NGOs are not social movements, and I think we should not confuse the two. NGO-ization is how the LGBT came into the Indian scene. But that’s not a social movement.

And this social movement can only come from the ground upwards and not the other way around. It cannot be done by NGOs. It cannot be done by the middle class, upper caste activists who are all trained in the US and all speak English and can engage with the court  — it has to come from communities themselves on the ground.

Anand Grover shared some of the conversations around this with me. Parts of it felt like petty animosity to be honest, but there was a genuine concern that ground realities might not be represented. Anand remembers someone telling him that…

Anand:
That we had no business because we were not the people who should be taking up 377. That was the core of the vituperative remarks made by one gentleman. I won’t name names because I’m not into that kind of thing.

The case felt personal since it affected the lives of people. That an NGO with fancy lawyers was going to talk to your government about your sex life seemed disconnected from reality. This wasn’t their fight.

Criticism 2: 

Why even go down the legal route? 

Yes, 377 was a terrible law, but because of its really vague language, it was rarely used in actual cases against gay men. Rather, it was largely used to prosecute cases of child abuse because India’s laws at the time didn’t provide adequate protection for children. Here’s Ashley again, about a legal right versus a more fundamental right to be recognised:

Ashley: 
The question prior to that is, should the legal have been the route to go down to fighting for rights. If you look at all other minority groups, whether it’s Dalit, or whether it’s adivasis, whether it’s women, they’ve fought for their rights as a group, and the state recognizes them as a group, and then they have fought for their rights as a state-recognized group, but as homosexuals, have never been a state recognised group and the state doesn’t really acknowledge us.

Going to court was also a risky move. It drew attention to what some saw as a hidden issue— that could do more harm than good because now, so much attention had been drawn to 377. It would be covered in the media… and if they lost, it would be an even bigger tool of blackmail.

Here’s Vivek Divan.

Vivek:
It was vitriolic from certain sections. There were the other sections of LGBT Indian activism, which were extremely supportive and excited about the case. There were still other sections which felt that ‘why are you even upsetting the applecart let things go, you know, our lives carry on.’

People were worried that the case might result in more people being criminalised. In the 90s, when Sri Lankan activists fought a battle in the courts against their own version of the law, the court actually expanded the scope of the law, so that it would also criminalise lesbian sex! 

This kind of segues us into…

Criticism 3: 

Why make 377 the be-all and end-all of the LGBTQ struggle? Anand Grover talked about this.

Anand:
In fact, the lesbian community, or section of the lesbian community was not in favor of filing the petition against 377 at that time.

One of the groups that voiced this concern was a lesbian and trans collective called LABIA. I spoke with a member of LABIA, who asked for anonymity. She’s going by a pseudonym here.

Vidya:
So, hi, I’m Vidya and I’m a part of Labia. 

For some members of the LGBTQI community, Section 377 wasn’t the biggest problem. Take kidnapping laws. They were sometimes used against lesbian couples who were eloping to get away from their disapproving families. Trans people, who had been forced out of their homes and into the streets, were really affected by anti-begging laws.

Vidya:
The disagreement arises when, you know, there have been voices in the community which said that 377 was the main objective, right

And by making 377 the focus of everyone’s efforts, groups like LABIA feared that these other challenges would be forgotten.

If you remember our last episode, we discussed the origins of 377 and what the law actually meant. The wording is supremely vague: “Carnal intercourse against the order of nature.” But, penetration is a required condition. So although any sexual act involving penetration would qualify, the way the law was enforced, it was clear that it was mostly focused on gay men. So if lesbians weren’t affected directly by it, why focus all the energy on this one piece of legislation? Basically, “Why are you dragging us into this fight?” Here’s Vidya again.

Vidya:
And that is where Labia has always disagreed. That there are parts of the community who have other concerns as well, besides section 377 and besides marriage rights. Just basic discrimination, or the right to exist in society, the right to have the right IDs, the right to not be abused and violated within the homes and workspaces and all kinds of public spaces for example.

And these are issues which obviously, all queer people face to various degrees, but queer women, trans people or a lot of other parts of the community have these issues, which are more relevant to them. Whether it is having an anti-discrimination law or the trans rights law, or sexual harassment at the workplace.

Criticism 4: 

Why use the public health argument?  After all, this is an equal rights struggle. It’s a fundamental rights issue. 

I remember watching the news and reading Op-eds in 2018, before and after the Navtej Johar verdict. And a lot of the discussion was couched in the language of equality. By then it had become a bigger issue: it had become the symbol for a queer struggle. But it didn’t start out like this. In the 2001 petition, the Naz Foundation’s angle was very clear: 377 is impeding anti-HIV work. 

Contrast this with the ABVA’s charter of demands from nearly a decade before the Naz petition. It featured far more language about rights: it asked for the repeal of all laws that criminalised consenting homosexual adults. Including sections of the Army, Navy and Air Force Acts. It also asked for the complete repeal of 377, not just a reading down, and for police policy to be reformed so that gay people and prostitutes wouldn’t be harassed. By comparison, the Naz Foundation petition was much more narrow in scope.

I asked Anjali Gopalan whether people had voiced this concern to her back in 2001. She said that this criticism had grown with time.

Anjali Gopalan:
No one did come up to me and say that, but over the years, especially the younger lot, I’ve heard them say, ‘Oh, it was very wrong to use the HIV argument, to use the health argument, you should have done it using the rights argument’. So I’m like, first of all, none of you were around at that time. Secondly, you can say this today, because of the steps that all of us who were involved in this, we’re able to take.

Because how do you talk about rights when you are criminalized? To me, it’s logical that you first decriminalize, and of course, we need to talk about rights. 

Criticism 5: 

This one gets a bit complicated legally. Why did you use the word ‘private’ in your prayer?

Okay, let’s talk jargon here. When you file a petition in the court, you are essentially asking for something from the legal system. So you state a problem, in this case, Naz Foundation was stating that Section 377 was unconstitutional. And you make a prayer, a request to the court: What do you, the petitioner, want? In this case, Naz wanted the law to be ‘read down’, which means the law remains as is, but it cannot be used against ‘consenting acts between adults in private’. Private is the questionable addition here. Here’s Anand talking about it.

Anand Grover:
At this time, privacy became a very important issue. So lot of the gay men argued that our argument in the Naz foundation petition was not good because we had hinged our argument on Article 21 on privacy.

Article 21 talks about privacy, dignity and the right to life and health.

Anand:
We said all of them are violated because we argued that privacy is a very strong argument. In the privacy of my home, I can do whatever I want, you can’t intrude in that. 

Ashley Tellis talks about how for some sections, this was kind of already the case:

Ashley Tellis: 
Because ultimately if you’re saying privacy, people with a certain class privilege had that privacy anyway, they had the privacy of their bedrooms, and they didn’t need a law to tell them that they were safe in their bedrooms. So I don’t see how that was a meaningful campaign at all.

And at the same time, access to privacy isn’t universal either.

Here is Sumit Baudh, a Dalit scholar and member of the Voices against 377 coalition talking about this:

Sumit Baudh:
At the core of this distinction is the intersection of sexuality and class. And understanding that all of us are not so privileged as to have access to housing. And there are many of us who are constrained and compelled to access public spaces, because those are the only spaces that are available for an expression of sexuality.

This is a very important part of the debate. Privacy can’t be taken for granted in India. Space comes at a premium, especially for those from economically disadvantaged backgrounds. And on top of that, if your family doesn’t know you’re gay, you’re probably not bringing someone home anytime soon. Remember Siddharth Dube, the author we spoke with in Episode 2, the one whose neighbours called the cops on him? He talks about how important public spaces are to gay men.

Siddharth Dube:
The only places you could meet people were cruising spots. You know, in the park, public bathrooms, bus stands, places that were known to gay men or bisexual men to cruise.
And the reason people also cruise is truly because there was no other place to meet. So it wasn’t just for sex. This was a desperate attempt to meet somebody of your same orientation. 

So the Naz Foundation’s use of the word privacy can be seen as problematic, as discriminating against people who couldn’t afford their own spaces. 

But Anand has another explanation. He argues that the word wasn’t meant to be taken literally, in the spatial sense. He said that what he was going for was more the ‘idea of privacy’, even if you’re in a public place. Sounds confusing, right?

Anand Grover:
It is an argument of law, which means that even if you are in a park, you are entitled to privacy in the sense, nobody can actually come in, intrude in your practice in having same-sex relationships. So that is how it was resolved. There was a huge debate about the nature of the prayer in the petition, but in my view, we were correct.

It was evident that these different groups needed to dialogue. At the core of these criticisms is the need to consult the larger community. Anand and Lawyers Collective realised the whole process could have been more inclusive, that they and Naz could have consulted more people. Because the law had the potential to affect many of these people, the best path forward was to involve more voices.

Unfortunately, none of these criticisms had easy solutions, and they continue to be discussed today. But they did lead to more constructive debate and engagement. And then, in September 2003, all these groups had to put aside their differences and come together:

New Delhi, Sep 8 (PTI): Indian government on Monday told the Delhi High Court that homosexuality cannot be legalised in the country as the society disapproves of such behaviour.

Here’s Vivek Divan:

Vivek Divan: 
And then, of course, the government filed its reply. So it didn’t require a push, really, because then there was agitation in the community that my God, they filed a reply, and they’re completely against us, which was to be expected. 

The Union government, at the time led by the BJP, had, at last, filed its response. The Naz Foundation had named it as one of its ‘respondents’—the person or group you are challenging in court. And the government had, well, responded. It had taken almost two years.

Jaya Sharma:
Basically, they said three things in that.

That’s queer activist and writer Jaya Sharma.

Jaya:
One is that the government said that 377 was required, and I’m quoting, ‘in the interest of public safety and the protection of health and morals’. The second thing that they said was that if we do away with 377, and again, I’m quoting, ‘it will open the floodgates of delinquent behavior’. And the third thing that they said was that the vast majority of Indians are not concerned about homosexuality.

To queer people and their allies, all of this was problematic. But that last bit in particular, that was very upsetting.

Jaya:
And it was really in response to this last piece which was saying that the vast majority of Indians are not concerned about homosexuality — this was something that enraged many of us.

By making its response about homosexuality in general, the government helped bring together a diverse group of activists. So far, they had remained divided about taking the legal route. But now, they knew they had to unite. The Naz Foundation and Lawyers collective reached out to various groups across the country and started holding national-level consultation meetings. You can find a lot of the meeting minutes on the Orinam website, chronicled by Vivek Divan. As far as minutes go, they are extremely detailed.

In the meetings, people wanted to know how they could help.

Vivek:
You might have seen those, I don’t know, the detailed 75 pages accounts of strategy of ‘what can we do outside the courtroom? How can we assist?…We feel distant from this but can we do something where we are activists. We demand that this law be changed.’

And that was good, they needed all the help they could get. And this diverse cohort of people won their battle in 2009. But not just yet, because there was another curveball just around the corner. In 2004, the Delhi HC dismissed the Naz Foundation’s petition. The court said that the NGO didn’t have the right to file this public interest litigation in the first place, because it wasn’t really affected by the law. It wasn’t a gay man, it wasn’t at risk of AIDS. 

Things were not looking very good for Anjali and Anand. And they had a tough decision to make. Should they up the stakes and take this issue to a higher court? The highest court in the country? Should they risk it all and petition the Supreme Court? 

That’s on our next episode.