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This article was first published 10 years ago  » News » 'Section 377 judgement doesn't make sense in this day and age'

'Section 377 judgement doesn't make sense in this day and age'

By Indulekha Aravind
December 17, 2013 16:26 IST
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The judgement makes you feel so terrible at every step that the apex court of the country, in which so many people have so much faith, would do something like this, says Anjali Gopalan

It was a public interest litigation filed in 2001 by The Naz Foundation that launched the long battle to decriminalise gay sex between consenting adults in India. But with the Supreme Court's verdict upholding the constitutionality of Section 377, making consensual sex between homosexual adults a punishable crime, that fight has been dealt a body blow.

Naz founder Anjali Gopalan, who has been working with victims of HIV since 1986, talks to Indulekha Aravind about the implications of the verdict and what lies ahead

What was your initial reaction when the verdict was read out?

My heart just fell to my toes. It was just so horrifying to hear them mumble out what they were mumbling. Just think about it -- you got such a progressive judgement from the Delhi high court four years ago. If it was so illegal and so wrong, why were they sitting on that judgement for so long? Now, after four years, you had so many young people taking courage into their hands, coming out, talking about being gay and suddenly we’re pushing them back.

Don’t we owe it to our young people, who have taken this courageous stand, to somehow ensure they are able to continue with their lives the way it should be in any civilised, democratic country?

What will be your next course of action?

We would like to file a review petition and see how that goes. Then we could look at a curative petition. We have to file the review petition within a month.

The Supreme Court, in its verdict, criticised Naz’s petition saying it failed to provide details of incidents of discrimination and harassment by the state against sexual minorities...

I don’t know why they would say something like that. As far as we are concerned, it was well-documented. It was really surprising that they thought so. I don’t know what they were expecting because we'd done everything to the best of our ability, and with great sincerity and commitment.

The court also observed that LGBTs constitute a miniscule fraction of the population and that in over 150 years, less than 200 people had been prosecuted. And hence Section 377 could not be declared as violating Articles 14, 15 and 21. Your response.

I feel really saddened that the apex court of this country feels that it was “only 200”. What do they mean? Even if it was one person, shouldn't they feel it was important? And if you look at the convictions, they had nothing to do with consensual activity. What is forced is not consensual and so should be punished. We are talking about rights of adults who are in a consensual relationship.

Do you think the court has overlooked the social implications of the verdict?

I’m having a hard time at this stage to understand the way they have thought things through. I’m still reading the judgement carefully. It makes you feel so terrible at every step that the apex court of the country, in which so many people have so much faith would do something like this. It doesn’t make sense in this day and age.

Could you describe a couple of instances you have come across in your work where Section 377 has been misused?

When we first started our outreach work, distributing condoms and talking about safe sex, our outreach workers would constantly be taken to the police thana, saying they were promoting illegal activity. Over a period of time, we were able to convince those policemen that we were not indulging in anything illegal, only trying to save lives. That’s why, at the macro level, the implications of the judgement are terrible. It’s going to make it so much harder to reach out to an already marginalised community that has no access to information.

One of the petitioners in the original case, Purushottaman Mulloli, has argued that there is no mention of any particular sexual orientation in Section 377 and the Supreme Court itself said it could not be proven that the law was targeting the homosexual community...

Well, it’s always been used against a particular minority. It’s not used against heterosexuals, is it? Nobody tells a man and a woman having oral sex that it is not supposed to happen. It’s used to harass gay people.

Are you optimistic about what the future holds, especially with members of the government speaking out against the verdict?

Yes, we just had Sonia Gandhi and a few other members of the Congress coming out in support of the community. Of course there’s hope; we continue doing what we are doing because there is hope -- if there wasn’t, all of us would just give up and die. And we refuse to die. We are going to make sure things will change.

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Indulekha Aravind
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