In the Era of “Urban Naxals”, Section 377 Verdict is Proof That India Needs Activism

Social Commentary

In the Era of “Urban Naxals”, Section 377 Verdict is Proof That India Needs Activism

Illustration: Sushant Ahire

Should condoms be provided to Tihar Jail inmates? That was the question that sparked off the fight against Section 377 in 1994.

Prisoners engaging in same-sex relations are susceptible to contracting HIV if they are not given condoms. But if Kiran Bedi, then the inspector general of Tihar Jail, allowed that, she would be doing two things:

  1. She’d be acknowledging that prisoners had same-sex relations, and
  2. She’s be seen as supportive of it.

Bedi refused, because same-sex relations were illegal in India. That’s when AIDS Bhedbhav Virodhi Andolan (ABVA) filed a petition against the law. The rest, as they say, is contemporary history. And that is why I can write that same-sex relations were illegal in India – and feel my heart softly skip a beat.

In 1999, when I was five and already beginning to have crushes on both boys and girls, 15 people were marching in my city of joy, Kolkata – the first Pride March in India. It was an exercise in visibility by queer Indian activists, including Owais Khan who wrote about the experience for posterity. He talks about all the hard labour that went into organising the march and it reads more like work than anything else, albeit filled with trepidation and excitement. He ends the piece with a rumination about what that day would mean. One of its wide-ranging impacts is that today, if I want to walk out in a huge parade to celebrate my right to my sexuality, I need only check my calendar.

Naz Foundation began challenging Section 377 in 2001. Primarily involved with HIV prevention work, founder Anjali Gopalan once welcomed a couple who brought their gay son to her office. After a conversation of about five hours, they finally seemed to relent and accept the sexuality of their 21-year-old. Two months later, this young man turned up and told her he had been taken to a renowned Delhi hospital and given electric shocks to “fix” his sexuality. Furious, Gopalan wrote a petition that same day against such treatment. But the National Human Rights Commission said there was nothing they could do as homosexuality was illegal under Section 377. Naz Foundation filed petition after petition until same-sex relations were decriminalised in 2009, only to be “recriminalised” in 2013.

That fight will continue. If this verdict has proven one thing, it is that we can secure our freedoms even with no backing from our governments.

In 2016, among this last batch of petitioners against the law was transgender woman and activist Akkai Padmashali. In 2014, the Supreme Court recognised transgender persons as equal citizens, and yet, under Section 377, they remained criminals for having a sex life. Her petition rested on this contradiction. A recipient of Karnataka’s second highest civilian award, Padmashali says the police did not fully comprehend what the law meant, but knew enough to use it against trans-people at every turn.

She recounts a horrific incident from 2007. A group of her trans-women friends were laughing and gossipping over cups of tea at a Bengaluru park when they were picked up by the local police. Their heads were publicly shaven and they were thrown into lock-up after being charged under Section 377. They were physically and sexually assaulted all night with the police encouraging male prisoners to join in. Padmashali says when she and others finally found them, the women had slumped into a stupor, unable to say much. But the police kept defending their actions saying that is what Section 377 warranted. Ironically, the policemen should have been equal criminals under Section 377, but no one charged them.

Perhaps the most vulnerable among us who suffered the most under this law will remain unacknowledged, consigned to FIRs buried under paperwork, instead of the pages of history. But they are as responsible for this farewell to 377 as those activists we’ll sing of in the years to come.  

In a time when we find it convenient to attach labels like “Urban Naxal” and “anti-national” and “foreign-funded NGO” to any organisation working for marginalised citizens, it is important to remember that the 377 verdict is a victory borne entirely out of activism. Not government. The SC verdict also slammed the government for remaining mum on the law and passing the ball to the court. Their silence – and I mean successive governments here – has been resounding.

My own involvement with queer activism, was inspired by the role models I observed in the struggle to repeal 377. I came out publicly only after I’d moved to the UK for university. Even though the UK celebrated queer acceptance, I witnessed queer immigrants and asylum seekers face humiliation and persecution every day. I’ve heard horror stories of how the sexual privacy of my asylum-seeking friends were invaded in British courts.

Even as I grappled with being a “visible queer” in the UK, I dreamt and dreamt of an India where I could have a queer family with a spouse and children and a successful career. Now, perhaps, I am a step closer to that reality. There, I was a queer immigrant woman of colour – here, I am a queer, but middle-class Brahmin woman, with all the privileges those labels accord us. Here, I am basically the queer white woman of British society: Not a great place to be, but definitely with a lot more agency than many others.

So, here I am restructuring my activism. It is no more about being the most visible I can be, but visibilising those who need it more than I ever have in this country.

Remember that the right of Tihar Jail inmates to protection from HIV sparked off the drive for decriminalisation. It’s been 24 years since and prison inmates are still not provided with condoms. Prison officials continue to be in denial about same-sex relations within prison walls.

That fight will continue. If this verdict has proven one thing, it is that we can secure our freedoms even with no backing from our governments. Let us keep that in mind as we keep working.