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Goel: What exactly did the Supreme Court, India's highest court, rule on December 11, 2013?

Arasu: Let's start with the story of how Section 377 was fought in court. Usually the narratives start with the lawsuit, which was filed in 2000 and which has now been dismissed by the Supreme Court. But there was another lawsuit filed in 1988 by a group that ...

Sorry for the interruption, can you explain what Section 377 is first?

Section 377 is an article of the Indian Penal Code, the Indian penal code introduced by the British colonial administration. Section 377 states: "Sexual intercourse contrary to the natural order is punishable by ten years in prison and a fine" (Interviewer's note: on the original wording and further information). An explanatory note states that intercourse necessarily requires a penis. This legal requirement was introduced to limit sexual activity that was considered unnatural, the main one being homosexuality. In the UK, it was removed from the law books in the 1960s. Since it was a colonial law, however, it existed all over the world, wherever there were British colonies - for example in all South Asian countries in almost exactly this form. Many of the ex-colonies retained colonial laws even after their independence from the 1940s. Section 377 is one that stayed. From the interpretation of the law and the way in which representatives of the British colonial administration and the independent states have spoken about the law, it can be concluded that Section 377 can be used to criminalize all non-reproductive sex. As a result, those who were open to their so-called "deviant request" were persecuted and discriminated against. This applies to different sexualities and different gender identities. (Supplement by the interviewer: see also an article on experiences of discrimination in South Asia.)

Ponni Arasu, queer feminist activist from Chennai. Photo: www.urmila.de

What exactly is this persecution and discrimination like? Who is particularly affected by this?

Section 377 affects different groups. Let's start with the situation on the streets and in public parks. There it affects people who engage in homosexual acts either commercially or for other reasons, as well as people who live in a different gender than that which society attributes to them. For example, this applies to people who are socially regarded as male, but who live a female gender identity. In India, this includes hijras. These are people who have become part of a traditional community that has existed since the 12th century. Hijras perform various rituals, locate themselves in relationships and live in this community. They are part of many traditions in their community and society as a whole. (Interviewer's note: For an approach to Hijras see an article on this website. There are many exotic descriptions of Hijras that are very simplistic, focus on aspects like castration and sex work instead of describing their forms of community.

But there are also newer communities such as the community of men who have sex with men, also known as msm. This group was primarily an invention of HIV / AIDS awareness campaigns. There are also kothis, which are mostly working-class men who appear as feminine men and who play the role of women in their sexual relationships with people who are usually masculine men. All of these people are being bullied. They are exposed to violence from both the police and non-state actors such as local gangsters.

What police violence are they exposed to?

The police patrol parks and streets. When a person is a sex worker - regardless of gender or sexuality - the police and various state institutions think that they can do what they want with their body. There is very little protection that these people can expect from the state. Sex workers of different genders and sexualities experience the same violence as female sex workers and a little more.

The violence also affects people who cruise and meet in public cruising venues - something that occurs in all societies. They cruise, meet each other, and decide to have sex in a corner of the park. For some, that's what they want. They actually want to have sex in public. Much more often, however, sex in public is the only option, as there is no private space that they can use in a society in which families and all other institutions do not support their gender identity and sexuality. When cruising, the police usually arrest them before they have sex. That means they didn't break the law at all, that they didn't break Section 377 because they didn't have intercourse. But the police still beat them or subject them to sexual violence. This violence is also carried out by other non-state actors such as local gangsters, sometimes together with the police.

In addition, activists in communities in rural or semi-urban areas do HIV / AIDS awareness work. They hand out condoms and all. They too are arrested by the police, apparently illegally, for not breaking the law. We'll have to hurry up and get her out on bail. It has been happening for a long time now.

The violence queer people face in their private lives is even more serious. We live in a society where homosexuality is not okay. It is considered non-traditional. Most of the South Asian religions declare it a sin. We can argue against it. We can prove how traditionally people of different sexualities and gender identities have lived in South Asian cultures and societies. We can also argue that when a religion in South Asia, be it Hinduism, Islam, Christianity, Sikhism, or Zoroastrianism, declares homosexuality to be a sin, it is a very narrow interpretation of that religion. We can argue all of this. But in everyday life the prevailing opinion is that it is against the Indian tradition and a sin. You can imagine how violent it is when people find that because they have this desire, they are sinners who violate the traditions. This is the first form of homophobia that we all have to deal with.

How does Section 377 affect this?

It can be argued that Section 377 is not the biggest problem, that we should rather deal with the societal problems surrounding homophobia. That is an important objection. But the law has the task of treating us all as equal citizens. And then there is an article that explicitly criminalizes something I do in private with one or more consenting adults. Perhaps this criminalization leads to my internalized homophobia, to the homophobia to which I am exposed by the police, my family, my colleagues, in the education sector, perhaps not. We have to think of Section 377 as a knife that always hangs over our heads and can be seen by everyone. Even if you are not out to yourself or society, if people suspect that you are homosexual, they will immediately see the knife. People will tell you: It's forbidden, you can't be gay. It's against the law. It's criminal. The most important point is that we cannot have a regulation that restricts our most basic individual activities. How are we supposed to speak or breathe freely when there is a law criminalizing these activities? How should we then make our demands in order to change social values ​​at their roots? Then how are we supposed to change the idea of ​​what it means to be an Indian, a Hindu, a Muslim, a Christian? How should we change what family or love means? If we want to change these ideas in Indian society, then no knife should hang over us.

The other aspect is that the law should be there to protect citizens. The sole purpose of the law is to protect citizens from physical, emotional and spiritual harm. To do that, the law must not criminalize who I am. If the greatest harm to me comes from the law, then I cannot turn to the law for protection. That is completely illogical and must be abolished. The law must protect every citizen from violence. Regardless of what their families or themselves may think.

I would now like to come back to the beginning of the interview. You wanted to tell me about the history of fighting in court and you went back to the 1980s.

The lawsuit, which has now been dismissed, began in 2000. But before we get there, we must remember our story. People always pretend they're the first to do something. But we all have a story and it is important that we recognize it. LGBT (lesbian, gay, bisexual and trans *) groups have met in India since the late 1970s, getting to know each other, supporting each other, setting up emergency phones, and preventing suicides. So far we don't know everything that has been done.

Regarding the fight against Section 377: The AIDS Bhedbahv Virodhi Andolan group was formed to fight the social exclusion of HIV-positive people. In 1988 they challenged Section 377 because it additionally discriminated against HIV-positive people who had already been discriminated against. Unfortunately, her request was soon dismissed. The court did not find it established that this discrimination was a consequence of Section 377. That was the first complaint.

In 2000 the Naz Foundation India brought the subject up again. This foundation is also an organization that works on HIV / AIDS. Her many years of work had already motivated her to take action against Section 377, but the specific cause was an incident in her Lucknower office. The police had searched it, seized HIV / AIDS education material - including condoms - and arrested the employees on the basis of Section 377. The Naz Foundation then argued that this article interfered with their important work and therefore they would challenge it. In 2004, however, their lawsuit was also dismissed on the grounds that it could not clearly show that Section 377 was directly causing the discrimination.

Delhi, India December 9th, 2004: The Alliance Voices against 377 starts its campaign "Million Voices" against Section 377 of the Indian Penal Code in Dili Hat in Delhi. One of the "Million Voices" collected at the event is shown. Photo: Urmila Goel

Fortunately, there had been sufficient public mobilization by then. Unlike the AIDS Bhedbahv Virodhi Andolan case, the dismissal of the lawsuit was not calmly accepted. There were a lot more groups, a lot more queer people were out. Around 2004, people from my generation became active (interviewer's note: on Ponni's commitment at the time). We started small collectives. I was part of the media collective Nigah and Anjuman, the first queer student collective at Jawaharlal Nehru University. We wanted to support the Naz Foundation's lawsuit with a network of organizations. This included women's rights groups, HIV / AIDS groups, groups that have worked on sexuality, children's rights groups, and all the little feminist and queer collectives. So Voices against 377 was founded.

When the Naz Foundation's lawsuit was dismissed, they used the special leave permission. This allows them to ask the Supreme Court to recognize the complaint as justified and to hear it. Voices against 377 filed a lawsuit in support of the Naz Foundation's lawsuit. We argued a little more generally. Not only have we argued that the right to health is compromised in relation to HIV / AIDS, but our fundamental rights to life, freedom and dignity are also compromised. We have also stated that we can prove this. The Supreme Court then thankfully decided that the complaint must be heard. She went back to the high court and the hearings began.

While the legal path was progressing in this way, there was simultaneously and equally everywhere a much greater public visibility of queer issues. Most of the time, upper-middle-class English speakers - like myself - can be seen talking about these topics on television and online. There is criticism of this both within the movement and from outside. And that's a valuable criticism. Many of our victories can be traced back to our coming from this class of society. This distinguishes us from other social movements in which people either do not come from these social classes or, if they do, leave them and live for years in small villages in the mountains. It's true, there are a lot of upper middle class people that you see all the time. But it must also be noted that the queer movement takes many forms. There is no such thing as one queer movement. While the legal route was being taken and a few individuals became the visible faces of the movement, there was a struggle for representation in the movement. People have worked in small villages and towns and made the most basic offers for the most marginalized LGBT people. The fight is actually about them. If you, as a rich person, are denied your constitutional rights in a country like India, it's tough, but you can go on living. Surely you will experience homophobia. Surely you will be forced into marriage. But for others it is actually a matter of life and death. It is not about hierarchizing the pain of one over the pain of the other. It's a matter of perspective. We have to recognize that different people fight different struggles. Outside the courts, some of the most marginalized people have fought the most inspirational struggles. For example, woman-to-man people from the working class, from low castes in the small state of Kerala (Interviewer's note: see also a report from 2006, including on Kerala). So many people got involved, not only to improve their own lives, but also to work for others like themselves. All this work went on and a new dawn spread across the country.

Then how did the Delhi High Court decide?

In the midst of this departure came the judgment of the Delhi High Court. July 2nd, 2009 was the best day of my life. The Delhi High Court ruling has stated that Section 377 is against the Constitution of India. It is not constitutional because it denies part of Indian society the right to life, freedom and dignity. The ruling decriminalized private consensual sex between adults of the same sex. It did not discard the entire article as, until recently, Section 377 was the only law that criminalized the vast and hideous problem of child abuse in India. That is why our position was very clear from the start. We were not calling for Section 377 to be abolished. We just wanted consensual sex between same-sex adults to be decriminalized. The court did just that and went above and beyond. You have confirmed our constitutional rights as citizens and have invoked the authors of the constitution. It was an excellent judgment. A judgment that not only made the affected communities and the plaintiffs happy, but should also make all lawyers happy. Such a judgment is the reason why one should bother with the justice system in the first place. It shows that one can actually achieve it. People can assume a legal regulation and when people present the issue well and the judges listen to them - as in this case - then the discussion about the legal regulation can become a much more far-reaching philosophical argument. The Delhi High Court ruled that in a democratic society based on the rule of law, it is not the moral principles of society, i.e. what people think about this or that, that are relevant, but rather the constitutional principles, the spirit, the ethics and the principles contained in the constitution are included.Based on these principles, it is very clear that Section 377 denies a group of people the most basic rights and must therefore be interpreted differently. (Interviewer's note: In Indian law, a legal requirement can be read down. It is then not abolished, but interpreted differently. In the case of Section 377, this meant that the article continued to apply to child abuse, but not to consensual same-sex sex among adults .)

What impact did the Delhi High Court ruling have?

Things have felt different in India since then. Many different people have come out to their parents or colleagues. Much of it was still limited to the urban English-speaking context, but still. Many institutions, both corporations and non-governmental organizations, were established. There was a breakthrough in the public negotiation of sexualities and gender identities that had never happened before on this scale. If you went to a sexuality demonstration, it might just be new faces. There is a new generation that has been out since 2009 and has different experiences than us. If they lived in a big city and came from the English-speaking upper middle class, then they didn't have to invent hypothetical heterosexual partners. In my generation we all did this. We've all gone through the phase where we thought we were the only ones in the world. These young people didn't have to go through it. They already knew there were many because they saw them on July 2, 2009 on TV. That makes a difference.

Then why did the case go to the Supreme Court? And what did he decide?

Following the judgment of the Delhi High Court, our opponents, who were predominantly religious groups and individuals of all denominations, appealed to the Supreme Court. We have filed replies against it. The complaint had been before the Supreme Court again since 2009. On December 11, 2013, he decided two things. For one thing, the court has said that it is not its job to judge it. It is a job for parliament and politicians as it is a matter of public opinion and parliament is a representation of what people think. Second, it has stated that it does not assume that Section 377 is in violation of the Constitution.

The problem with the judgment is that it is a very bad legal document. His reasoning makes no sense and leaves a lot to be desired. The judge has declared that the law is based on the will of the people. But it was passed by British bureaucrats. The judge thus defends the colonial decision-making process against social movements that exist today in independent India. In addition, Section 377 was declared constitutional because the LGBT community was a "tiny minority" - so it is in the judgment. That is the most unconstitutional thing a judge can say. The premise of the constitution is that even if only one citizen's rights are violated, the constitution must protect them.

Now statistics are flying around everywhere. How can he claim that we are a tiny minority when thousands have taken to the streets at every Pride in every city since 2008? (Interviewer's note: Pride are demonstrations for the rights of queer people. In Germany they are mostly called CSD - Christopher Street Day.) If that is not a sufficient number, what then? So even we get into the numbers game, but that's not the point. If we wanted to have a majority state, India would be a completely different country. When arguing, one can understand how the people of Kashmir, Nagaland and Chhattisghar must feel. The Indian government repeatedly argues against them that the majority of the population disagrees with them. That is why people in these regions are shot or raped. This logic leads to majority rule. The constitution is supposed to prevent this and ensure democracy. Democracy is different from majority rule. The ruling of the Supreme Court strengthens a form of majority rule.

Although I'm not so convinced that the majority opinion is so simplistic that it is homophobic. Regardless of what happens in the courts, social mores have changed. People now think differently about sexuality and gender. There is a room for conversation and debate about it. That's something we've achieved. The judge cannot declare this undone.

What are the effects of the judgment now?

The violence has started. People are arrested on the argument that the court has ruled that they are criminals and that the police can do whatever they want. People who do HIV / AIDS awareness work have been arrested in this way. People who have come out since 2009 will pay a heavy price in their private lives. Parents who supported the Supreme Court petition say their extended families have started to be mean to them and their children. Not just because they accept their children for who they are, but because they made it public. The families now argue that the court has now judged what they always told them: It was a sin. A difficult time is coming and it is very daunting. Some of us have spent our entire adult lives fighting Section 377. I was 16 when I joined the campaign and now I am 30.

The verdict is a great shock. We didn't expect it. Our public image was so positive. So many opinions have changed. That can't be turned back overnight. Since the ruling, we have had a lot of support from the government and various parts of society. But in the end the court didn't care and it unleashed violence against us.

Berlin protest logo on the international day of protest against the re-criminalization of non-heterosexuality in India on December 15, 2013. Photo: blog.suedasien.info

What support have you received from the government and parts of society?

The interior ministry of the federal government was on our side in the case of the Delhi Court ruling. At the time, they did not appeal to the Supreme Court because they were satisfied with the verdict. But after the Supreme Court ruling, they were the first to submit a review petition. A review petition is an application to the Supreme Court that requires a different composition of judges from the same court to review the judgment and check whether there are any obvious errors. These could be mistakes in the judgment or neglected evidence. Review petitions have been submitted by many. We, Voices against 377, submitted today. The Naz Foundation has submitted a review petition. But the Indian government was the first to submit a review petition for the court to overturn its judgment. The government, which otherwise offers little support to social movements, has become actively involved.

Otherwise we proclaimed the Global Day of Rage on December 15, 2013. There have been protests against the Supreme Court ruling across India and around the world. They were organized by very different people, by many groups, independent of us - that was really heartwarming. (Interviewer's note: There was also a small demonstration in Berlin.)

Of course, there was also support from our friends and families who stand by us regardless of what a judge thinks of us. Even people who have problems with our sexuality or who don't care have said: 'You are my friend and I cannot understand that you are seen as a criminal in this country. That's not fair.' All of this is very encouraging. It's just so frustrating that when there is so much else to do, we have to continue down the legal path.

If the government assists you in the judicial process, is there a possibility that they can abolish Section 377 through parliamentary channels (as the court has requested)?

It is much easier for the federal government to submit the review petition than to abolish Section 377 in the parliamentary process. That requires negotiations with more than one political party. This topic brings out the worst in people. The BJP has already stated that it agrees with the Supreme Court and considers homosexuality to be a sin. If we are looking for the parliamentary route, then they are there and will articulate their resistance. The fact that the government supports us in court says nothing about what would happen in parliament. They are two completely different things. We appreciate the current government's support, but we shouldn't read too much.

What are you going to do now?

There is a lot going on. A campaign is currently underway in which you can send a letter to the Supreme Court about what you think about the verdict. On January 11, 2014 (interviewer's note: one day after the interview), one month after the verdict, Global Day of Rage events are to take place again. At the same time, the work in court continues. Apart from that, all of the people who do the groundwork keep doing their job. Their problems will get worse if the arrests and violence continue. We need to keep media attention to the trial. We also have to keep in touch with the queer communities, tell them it's okay, we're going to win, and the court can't get away with it.

Impressions from the international day of protest against the re-criminalization of non-heterosexuality in India on December 15, 2013 in Berlin. Photo: blog.suedasien.info

What kind of international solidarity do you need?

The solidarity that was shown at the Global Day of Rage was great. People all over the world took up the slogan and got involved. This way of drawing attention to the situation should be maintained.

Some of the media coverage had the tone: 'Of course an Indian court decides like that, that's how they are.' Aside from the fact that that is not true, this is obviously the never-ending racism of the western media. For people who are interested in things in India, who are interested in topics related to sexuality no matter where, who are interested in topics from People of Color, this can be a good occasion to get into conversation on the topics locally. Make it clear that the Supreme Court has only ever passed judgment because there is an active movement in India that has fought for it for at least three decades. When western media claim that such a verdict would be natural in India, tell those from the Delhi High Court verdict and that large sections of Indian society - not just the queer movement that fought for decriminalization - are shocked by the verdict . Make public that public opinion in India has changed. The attention should also be used by and for People of Color worldwide, especially those of South Asian descent, to reflect on how to live their lives, how to negotiate their chosen lives with their families. Use the movements and materials that come from India as an example.

Queer people around the world should understand how precarious their rights are and how easily they can be taken away. International movements for LGBT rights need to be as wide-ranging and intersectional as possible. Otherwise, they will become an integral part of the conservative panning most governments around the world are taking. Many parts of queer movements in many parts of the world are already part of this conservative swing. How can we have these conversations? How can white LGBT queer people in Berlin or Toronto or New York get a well-informed perspective and show solidarity with queer people around the world? What happened in India is nothing compared to what happened in Uganda, for example. How can we show solidarity with other queer people without being condescending and spreading prejudice about their societies and cultures? For this it is especially important to be guided by these places. How can we make connections between what is happening in other places and what is happening in our people of color? It's another way of debating.

Regarding the visible solidarity and actions that directly support our campaign: Events like the Global Day of Rage and everything that happened that day are a good way to go.

Thank you for the interview and good luck with your work.

 

Addendum

January 28, 2014 came another shock to India's queer movement. The Supreme Court rejected the review petitions without any further justification. Urmila Goel therefore asked Ponni Arasu what significance this decision of the Supreme Court has and what would happen next.

Arasu: There is now another possibility in court, the curative petition. That means arguing that the reasons for the review petition were rejected without adequate consideration. It must also be shown that there was a denial of natural law and / or bias on the part of the judges. We have not yet decided whether we will take this route. It's not a particularly promising option. However, the Indian government has already announced in the media that it will submit a curative petition in our support.

The effects of rejection are severe. Homosexuality can no longer be decriminalized through legal proceedings. The prospect is dire as the parliamentary process will be much more complicated. It is difficult to negotiate with political parties, even more difficult when it comes to sexuality. With the real danger of a Hindu fundamentalist BJP government, we don't even know if we will have a government to negotiate with. The BJP are the people who supported the Supreme Court ruling, who set fire to cinemas in 1998, who showed the movie Fire, and who consistently attacked queer voices. This is related, of course, to their fearless massacres of thousands of Muslims in Gujarat in 2002 and elsewhere at other times.

For the individual queer people, the emotional turmoil is appalling. The dangers and oppressions are much more real and pressing now. At the same time we are out, we cannot and do not want to go back to the closet. We got used to breathing outdoors!

The movement has been active for a long time. So there is no retreat. Fundamental social change never ends with a change in laws anyway. This is just a necessary change on the way to real social change. The fight will go on. The public protests will continue. You will get stronger and bigger every day.

 


 

Ponni Arasu (born 1983) is a queer feminist activist from Chennai who has worked on a range of human rights issues, particularly issues of gender and sexuality, work and conflict. She co-founded several collectives that have worked on gender and sexuality. This includes the media collective Nigah, which has organized the annual Nigah Queer Fest in Delhi in recent years. Ponni Arasu has done legal and campaign work as part of Voices against 377, a coalition to decriminalize homosexuality. She has written two articles with Priya Thangarajah on queer women in India. After studying history in Delhi and law in Bangalore, she is currently working in Toronto, Canada on her doctoral thesis in the field of Tamil history.

 


 

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