Many moons ago, Sam Manekshaw told a reporter, ‘I belong to an age when gay meant happy.’
Much as the veteran Field Marshall with a gift of gab pointed light-heartedly at the shifting mores of society in general over the length of his long life, he would not have been far from reality had he been alive today and had made that statement this past December 11. Sir, we all now belong to an India where ‘gay’ is supposed to mean only happy, not homosexual and certainly not a happy homosexual.
A Supreme Court bench, hearing a joint petition against the Delhi High Court judgement in 2009, which decriminalised physical relationship between two consenting adults of the same sex, has recently turned it down, making gays illegal all over again, thus situating the society on this reverse mode.
There are some who are indeed ‘happy’ at the re-criminalisation of homosexuality as per Article 377 of the Indian Penal Code, certainly leaving no scope for doubt in them that what is popular and majoritarian may have throttled the personal, the minoritary here. What was once launched on us by our colonisers to “civilise” us may have robbed us an opportunity to make what history said we once were — an inclusive society.
Anjali Gopalan, founder of Naz Foundation, which petitioned to the favourable Delhi HC judgement for the LGBT community, says she “was absolutely aghast at the SC judgement, like many many people in this country.”
“Many many” may not mean the majority but is perhaps an apt description, considering the wide-ranging protests that we have been seeing from the queer community and others in response to the judgement — on the streets, in newspapers, on television, in social media — the usual parameters of gauging public pulse. Gopalan is “aghast” particularly because, she says, “the judgement didn’t make sense, that the Supreme Court would go back on the HC judgement that was so based on our Constitution.”
The arguments given “are also not making sense, first to say that they are less in numbers, because we really don’t know the numbers yet. Second, to somehow imply that because they are few in numbers, so they really don’t matter. That I feel is against everything that a judiciary is supposed to stand for, is certainly against what our Constitution says,” she argues.
Arguments on the part of the Court that there are not enough reported cases of homosexuals being harassed because of Article 377 “also don’t hold true” because “it is the gay people who have been harassed by the police, they are the ones who are being raped and assaulted.” She asks, “If the police themselves harass them, who will file their FIRs?”
Gopalan, a well-known face in the field of HIV/AIDS activism in India, which catapulted her to the Time magazine’s 2012 list of top 100 influential people in the world, rests a hand on her head, a tad helplessly, asking some more questions, “So why did you then sit for four years to say it is illegal behaviour? Why did you allow an illegal activity to go on for these years? Because of the HC order, thousands of young people took the courage to come out of the closet, their families accepted them because of the HC judgement, and now you are telling them you are all criminals?”
The bigger point here is, she underlines, “it is a reflection of what we are doing with our minorities. Be it in Kashmir, be it in the North East, be it rights for the sexual minority, animal rights, it is the same attitude. We are becoming more and more intolerant of the other.” All individuals, if you give them the space, will prove to be productive citizens. “But if you impose your sets of right and wrong and therefore they have no right to live, then what can you expect from people?”
She asserts, “That so many people have been silenced, that so many are taking a stand for the SC judgement, shows the trend.”
The petitioners against the HC judgement have argued that religion is opposed to homosexuality. “But it is not about religion, we are not telling people not to follow religion, even homosexuals are believers. But this is about rights,” counters Gopalan.
This “going back and forth and playing with people’s lives”, states the Nobel Peace Prize nominated activist, “would not only lead to the earlier situation when gays would be harassed by the powerful but would also lead to a lot of people going underground, and hampering the HIV/AIDS caregivers from reaching them.” A fear already expressed by many in the field including the Government-run National AIDS Control Organisation (NACO).
It is worth pondering when Gopalan calls attention to this point. “Over the years, NACO has become a separate department of the Ministry of Health and Family Welfare. It now has plans to integrate its HIV/AIDS programme into the National Rural Health Mission. So you imagine, after this judgement, what will happen at the mofussil level. I can’t imagine how sex workers, transgenders, and men who have sex with men will access our health services. So it makes it much harder for people in the field to control the spread of HIV/AIDS in the country.”
Gopalan should know the odds as it has been quite a journey for those working in the field of HIV/AIDS in India for over a decade. Here, she recalls the circumstances that led Naz Foundation to take some landmark decisions. Like opening Delhi’s first HIV clinic around 1996. “Because no lab or hospital would conduct HIV tests then.” A turning point for the Foundation was when a young gay man came to her office in 1999 seeking help. “His parents took him to a Delhi hospital which gave him shock treatment to become ‘normal’. That’s when I realised you can’t talk about HIV/AIDS without talking about sexuality,” she says. That most gay men in India are married to women, directed the Foundation towards HIV-positive women and children.
In 2000 came another landmark moment. Gopalan’s brother gifted his house in South Delhi to turn it into a home care centre for HIV-positive children and women in Delhi, the country’s first. “That was the time when an HIV-positive child was left in our office. We tried to get him admitted in Government hospitals and orphanages but failed. That triggered the decision,” she recalls. About why she knocked at the court doors to remove Article 377, she says, “When we took the case of the young man who was given shock treatment to the National Human Rights Commission, it threw us out saying it is a criminal act. Then, there were parents who would not accept their children as gays because of the law. So we went to the Supreme Court which directed us to the Delhi High Court.”
When the SC judgement “sunk in”, she says, “the first feeling was, I want to leave the country.” And then hope sets in. “In 1994, when I came from the U.S. after working with HIV/AIDS affected marginalised communities, it was taboo to talk about HIV/AIDS here openly. A lot has changed now. Homosexuality has also been a taboo subject but the discourse around it has also changed from what it was 15 years ago.” That there is now so much media coverage on issues related to homosexuality is a sign of this shift.
“But there is still a lot to change.” She reflects, “My sense is, opposition to homosexuality comes from a sense of not knowing it. Scientifically, we know that a very small section of any society is homosexual. So the assumption that someone can be made gay is not based on reality. Like heterosexuals can’t be made into homosexuals, the same is true of homosexuals. We all need to introspect why we fear it, we need to think why someone would choose to be a homosexual only to get so much pain, to do something which society doesn’t allow.” To the argument “what will happen to our population, I would say, do we have to worry about it in this country?” Her worry is, “if you make them illegal, you take away their sense of self worth.” It is, she adds, “based on my belief that people will take care of themselves when they value themselves, or else won’t.”
That the Government “is making some noises” now makes her hopeful. Also, in a month’s time, she plans to file a review petition against the judgement. She comments, “I believe ethics and law are two sides of the same coin and they are not static, so it is not all hopeless. Unfortunately, they are not always in the same pace with each other.”
Gopalan signs off offering food for thought. “The law has its own place but the real change would happen in people’s mind. It is not that people are bad, want to hurt others, but they don’t know what it is; it is time they know it.”
Did someone say knowing can also make you happy? And gays happy too?
