How the LGBTQ Fight in India Went From Being a Health Issue to Civil Rights

The Delhi high court's verdict striking down Section 377 was preceded by years of hard, deliberate and targeted effort put in by the LGBTQ community’s activism, developmental agencies and NACO.

In 1998, the Ashoka Hotel had let out its convention hall for a gathering. When it realised it was for a meeting of LGBTQ people, the hotel cancelled the booking.

The LGBTQ community, I was told, had to then go to the nearby Nehru Park to hold their meeting.

This story was recounted to me, ten years later at a large and well attended conference held in the very same Ashoka Hotel on issues related to gay men and men who have sex with men (known as ‘MSM’ for short).

It was around the same time that Anjali Gopalan, the original petitioner for scrapping Article 377, had got back from the US with a program for working with MSMs and was turned away from India’s National AIDS Control Organisation (NACO).

A year before the high court judgement, in 2008, NACO got a thirty million dollar grant for MSM interventions from the Global Fund to Fight AIDS, Tuberculosis and Malaria.

And then in 2009, the Delhi high court, in a remarkable judgement, declared the Section 377 of the IPC, which criminalises “unnatural sex” and disproportionately affects LGBTQ identifying people, as being contrary to the fundamental rights guaranteed to every Indian citizen and held it unconstitutional.

Clearly, within just that decade, centuries of blind prejudice and hatred against an estimated million people having a different sexual orientation was witnessing radical changes.

Such shifts, however, were not due to a sudden change of heart or mind of some individuals. It was the result of a hard, deliberate and targeted effort put in by the LGBTQ community’s activism, several developmental agencies and partners, the political leadership, NACO, media and the judiciary. Change comes in the right environment and these catalysts of change brought about that environment.

The fact that MSMs were very highly vulnerable to HIV infection was known to the government since mid-80s, when the first steps of setting up a system of surveillance was established. That nothing significant was done about it for two decades was due to the hostile social environment, the absence of civil society or agencies to work on the issue as they too were products of the same society and the lack of capacity in NACO to take the lead.

And so when Anjali Gopalan and the Naz Foundation came to help, NACO did not know how to respond.

Anjali Gopalan at a pride parade. Credit: Athlour CC BY-SA 3.0.

In 2005, the Bill and Melinda Gates Foundation-funded Avahan Project broke the ice, as they funded MSM collectives in districts having high-risk of HIV infections. Initial successes of the pilots showed the way and not before long, the interventions were scaled up by NACO, starting with the establishment of surveillance sites from three in 2000 to 96 in 2009, helping estimate the number of persons infected by HIV. HIV prevalence was estimated to be 8.4% in 2003, but fell to 4.4% in 2010.

UNAIDS too joined the effort and began to champion MSMs right to health.

In the meanwhile, the global human rights movement got into the act, expanding the issue of access to HIV treatment to their fundamental right to dignity and recognition.

The Lawyers Collective, with funding support from UNAIDS, pioneered work in shifting the mindset and breaking down prejudices and biases among the judiciary through workshops and meetings at which Supreme Court judges from Australia and South Africa, who identified as queer themselves, attended.

The media was sensitised, becoming supporters of NACO. Workshops and exposure to the changing global perceptions in the Worlds AIDS Day meetings to which media representatives were sponsored to attend, made an impact in their thinking of issues related to HIV in general and MSMs in particular.

AIDS Societies in states like Karnataka and Tamil Nadu made significant breakthroughs with the police forces in expanding empathy and understanding of the MSMs, since on the ground, on a daily basis, it was the police that was the face of the ugliness of our society – harassing and physically abusing MSMs and exploiting their vulnerability using the threat of Section 377.

And for all these activities, NACO rose to the challenge and provided the governmental sanction, funding support and the credibility that helped dealing with this “outlawed issue”.

Taking over charge at NACO

Early in 2007, a few months after I joined NACO as director general, I happened to visit Bangalore, where I met the members of Sangama, which has been working for the rights of India’s sexual minorities. They had lawyers for helping them with the police who routinely harassed LGBTQ individuals, especially MSMs.

Born and raised in a conservative middle class family, my own understanding or exposure to sexual diversities was limited.

And so I was extremely disturbed when I learnt to my horror the kind of irrational violence, abuse, exploitation and hate that the LGBTQ community was subjected to and the fear of violence and social ostracism they lived under. Even as their mind screamed out to society for understanding, they would be forcibly bound by societal norms into loveless marriages they could not sustain, living with fear of being found out by their wives or children and facing ridicule and shame. This was a situation that was as unnatural and bizarre to the kind of a society that I thought I belonged to.

A few days later, after the visit to Bangalore, a file was put up with a draft reply to Gopalan’s petition in the Delhi high court seeking the scrapping of Section 377. The NACO reply was opposing Gopalan’s petition and arguing for Section 377 to be continued.

But the visit to Bangalore had shaken me and influenced the total rewriting of the health ministry affidavit, which ended up agreeing with the petitioners seeking to scrap Section 377. Our affidavit went to the Ministry of Law and the Home Affairs. It was approved in a routine way and filed in the high court.

In the meanwhile, the Ministry of Home Affairs, that was the main respondent, had also filed their affidavit opposing the petition.

The contradiction in the two affidavits went unnoticed till the high court judges pointed it out and asked the government to ‘speak in one voice’. This was in 2008. The varying stands of the government of India on this matter made headlines.

The divisions in the Indian government

I then had a meeting with the then Union home secretary, Madhukar Gupta who concurred with our concerns.

A formulation was then re-drafted that sought the removal of that part of the Section 377 that discriminated consensual sex but retained that part that made sexual exploitation of children an offence.

The file for approval with the revised draft went to Shivraj Patil, the then Union home minister.

But on an earlier occasion, in 2007, Patil had voiced his dismay with NACO and UNAIDS that sought his support for directing the police department to stop harassing MSMs. They also wanted him to allow them to distribute condoms in jails.

Patil heard us and asked for evidence of police exploiting MSMs. He wanted to know the number of FIRs filed. But our plea for his intervention to direct the police, precisely for the reason that the police would not register FIRs in return for sexual favours, was summarily rejected.

So, when the concerned file went up to him, Patil called for a meeting with Anbumani Ramadoss, the then minister for health. As the director general at NACO, I attended this interface between the two ministers along with Naresh Dayal, the then health secretary.

I witnessed the anger of the home minister, who peremptorily asked us to change the affidavit.

Those were tense moments as the relational power between the senior minister of home and the health minister from a small political party of Tamil Nadu that had just six MPs was clear.

To our relief, Ramadoss stood firm and resolute, refusing to shift our position as he felt that the scrapping of Section 377 was fundamental to our efforts to contain the HIV epidemic.

Even today, I look back and wonder what would have been the outcome if the minister had yielded and the government had vigorously opposed the petition.

We were complacent, after the 2009 victory

The high court judgement of 2009 was a landmark. But it is a matter of regret that the moment was not seized to actually amend the IPC through parliament.

After all, we in NACO were aware of the political support our program enjoyed – Rahul Gandhi, along with Milind Deora, had on his own visited NACO to understand our program and had even suggested at the time, that we draft an anti-discriminatory law on lines of some Latin American countries. Such a law would have helped not just the LGBTQ community, but anyone being discriminated against on grounds of caste, sexual orientation, colour or gender.

The well argued judgement of the high court had unfortunately lulled us into complacency and that moment was lost.

Over-turning of the victory in the Supreme Court

Soon, election time descended. By then, groups of all religious denomination – Hindu, Muslim and Christian – appealed to the Supreme Court opposing the high court judgement.

The Congress party was divided on the issue and the government dithered.

Since the high court judgement was so solidly argued on strictly the issue of fundamental rights and the Constitution, it was never imagined that the Supreme Court could differ.

But it did and in 2013, issued a judgement that opposed the scrapping of the section, arguing however, that inclusion or scrapping of any laws was not the job of the courts, but of the parliament. This has since gone to the five judge bench that is now hearing the petition.

Notwithstanding the reversal, the 2009 judgement lent confidence and got many more people in the LGBTQ community to come out.

Moving from health to the full range of civil and human rights

The current petition in the Supreme Court was filed by queer activists expanding the issue from a narrow health and HIV concern to one of fundamental rights and of laws being consistent with the Constitution and the freedoms it provides to all its citizens.

Such citizenship freedoms then enable access to enjoying other rights – to ration cards, housing loans and so on that those from the LBGBT community do not enjoy today. A crucial subset is the right to health care.

Notwithstanding the substantial changes among the LGBTQ community – from being diffident and fearful to one of confidence – there is still a huge amount of prejudice and societal discrimination.

Social acceptance is still a major hindrance that will slowly give way only when the principal legal barriers give way.

With Section 377 still valid, as in the past, NACO works with these communities in “violation of the law”, which makes health workers vulnerable to being hauled up for abetting persons indulging in unlawful activities. But NACO has no option as the spread of HIV in India is through unprotected sex. Like in Mexico, the HIV infection has been spread via gay men, due to unprotected sex with their wives as well as their male partners. They had to and have to be reached out with information and medical aids to protect themselves as well as others.

Credit: YouTube

They need to be treated when infected and they have a right to all this as the Constitution does not say that one can be denied access to health services or denied the right to life.

Over the years, the government has diluted NACO and reduced its preventive programmes aimed at bringing about behavior change towards unprotected sex, hoping that somehow, abstinence from sex will reduce the spread of HIV. It won’t and HIV continues to infect over 2 million people every year. Viral infections know of no boundaries – the rich and powerful, as well as the poor and weak are all equally vulnerable to it, as are straight and queer people.

Section 377 was not an ancient law that we in India need to preserve, but an imposition of Victorian England in all its colonies. There is no place for this obnoxious colonial legacy to continue any longer. It needs to go and it shall soon go.

K. Sujatha Rao has served as the secretary, Ministry of Health and Family Welfare and director general of the National AIDS Control Organization (NACO).