|Anjali Gopalan of The Naz Foundation on the fight for the rights of homosexuals.|
‘To me it was so bizarre that citizens of one’s own country should be seen as criminals because they loved someone of the same sex.’
For Anjali Gopalan, the Delhi High Court judgment striking down a part of Section 377 of the Indian Penal Code that criminalised consensual sex between homosexual adults came as a personal vindication. It was The Naz Foundation, of which she is the executive director, which had fought against this archaic and regressive law in the courts for eight long years. Anjali now hopes the judgment will bring about a change in attitude and reaffirm the values of equality and inclusi veness.
When did you first take cognisance of this issue?
I had been working on HIV from 1985 in the US, and one could see what the disease had done to the gay community. It had decimated it. So when I came back to India it really made sense to work with the community. I began working with the gay community in 1994 and quickly perceived the constant harassment it faced. The police would use Section 377 as a means to get couples to pay up, even if they were just sitting together or walking down the street. What also became very clear was that if one was looking at working with the community, it was important to build it. But a law like Section 377 didn’t allow that to happen.
From the perspective of HIV, too, it was clear that infections would not be prevented if people didn’t value themselves. When you are trained in the West you have a very clear idea about whether people are gay, straight or bisexual. Here I found that there was no such thing as a gay identity. Many gay men were married but were sleeping with men. I could see how this was impacting their lives and that of their spouses.
Then take the attitudes of parents. We did a lot of counselling of parents of gay people and they were constantly telling us, ‘Okay, you want us to accept the fact that our child is gay, that our child is really normal and natural. But if that were the case, why is it criminalised?’ That was when we decided that we really needed to look at this issue very carefully and do something about it.
So is this what drove you to challenge Section 377?
Yes, we approached the Lawyers Collective with that intention. The law, as you know, is very strangely worded. It said carnal intercourse against the order of nature with man, woman or animal was deemed to be criminal; it didn’t say anything about homosexuals specifically. Obviously this meant that anyone and everyone could be brought under the purview of this law. But definitely, not anyone and everyone was being harassed. Those who were harassed were from the gay community. We then realised that there was no law against child sexual abuse and that this law was also used for that. So we said, okay, let’s look at reading down the law where consenting adults are placed outside its purview. That’s precisely what we asked for, and that’s what we got.
What were the challenges you faced while fighting this case?
First of all there were a lot of people who asked: ‘There are so many important issues, why this?’ There were negative responses from the gay community, too. Some asked: ‘What are you getting out of this? After all, you are a straight woman?’
For me, it was the injustice of it. Many of us who do this kind of work believe in a just and equitable society. To me it was so bizarre that citizens of one’s own country should be seen as criminals because they loved someone of the same sex. It was as simple and straightforward as that.
There were also groups that made wild allegations about us, accusing us of being paid by western agencies. They said that we were actually promoting a western ideology; that we didn’t care about our country or its moral values; that our organisation, The Naz Foundation, was not registered. Complete falsehoods. I didn’t see them as challenges; I saw them as irritants instead. I thought, well these people too have the right to believe in what they believe in, and that I had to do what I had to do.
Also, initially, we had a difficult time in court. The court actually threw the case out, saying we had no right to challenge this law because we were not directly affected by it.
What do you perceive as the single most pertinent aspect of this judgment?
We couldn’t have asked for a better judgment. I can’t think of another judgment that better reflects two of the values I hold most dear: Equality and inclusiveness. I think this judgment really expresses the spirit of our Constitution and the thinking of people like Panditji and Ambedkarji.
So now that the Supreme Court has admitted the petition challenging the judgement, what next?
People like Baba Ramdev want to challenge this judgment in the Supreme Court. I don’t know what that means. Everyone has the right to his/her point of view. If that is how some people respond to the judgment, they must do what’s right for them. So now, I guess we will just have to deal with this after consulting members of the community. But I believe that it will be very difficult to overthrow this judgment because it’s based on very sound legal arguments.
Legislation is the next logical step then?
We need legislation. Without that there cannot be a national consensus on this issue. If the people in the community are to have legal rights, we need to build that consensus. I do hope our leaders will take a stand that makes it very clear that India is a secular, democratic country and that they resist the efforts of the religious right to hijack the issue.
Will the judgment impact on how HIV/AIDS is perceived in India?
For people to access health services, the behaviour of health providers to those from marginalised communities — whether they are gay or merely poor — is the key. The judgment will not impact this. The impact will be when people change their mindset and that is a slow process. We need attitudinal change. For instance, many believe that gay people are paedophiles. People don’t realise that most paedophiles are heterosexual men. All the cases that have come up in courts are of heterosexual men who have violated young children. So what are they talking about? Why are they linking homosexuality with paedophilia? Society has to be made aware of these realities.
So, with this judgment has India finally entered the 21st century?
There is change, certainly. Even if you look at the period from when we first started our work until now, there has been a significant change in attitudes. We’ve seen how the dominant viewpoint in the media has altered radically. For me this is significant because the media reflect the attitudes of wider society. We hear of many families accepting their children’s homosexuality. We know of families who have got their sons married to other men, their daughters married to their partners. It will take time. After all, we are demanding a transformation in some very basic ways of thinking. But it shouldn’t be an inhibiting factor. We also need to continue our dialogue with those who don’t agree with us. Especially because we look at the issue from the perspective of rights, we must not stop this dialogue even for a second.
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