By Joyoti Chowdhury and Yashodhara Chowdhury from My Pride Organisation
“In a time of universal deceit telling the truth is a revolutionary act”
– George Orwell
The discourse around the role of ‘Civil Society’ has been deconstructed and rediscovered by many social theorists over the years. From the 1970-80s onwards, civil societies have been recognised as a crucial part of public administration. The term is taken to include intermediate associations, who are neither part of the state nor of families but act to bridge the gap between the state and its citizens. The presence of civil society in political understanding has contributed to larger societal transformation. Political socialisation, voicing grievances, expressing dissent, demanding the meeting of needs (for example, demanding rights and acceptance for marginalised communities), maintaining mutuality and transparency, expressing unity and freedom, and performing welfare are some of the functions the civil society plays furnishing with a space of dialogue. Further, since the state can often become autocratic and neglect essential issues – an alert and diverse civil society have often worked to keep democracy, a dignified citizenry, and participatory administration alive through its advocacy and even activism. This has also contributed to major legal formulations in our country. We need to remember how over the years ‘law’ has also been a site of struggle not only in terms of how it is being practiced but also how it has been earned. The decisions around making and repealing laws constitute immense efforts of numerous civil society groups working on humanitarian issues. This article aims to address and delineate some of their contribution in ensuring this process primarily focusing on Section 377 and the struggles ahead.
Early Struggles
The post globalisation period witnessed an increasing awareness around marginalisation and acceptance of rights. In India it was from 1990s; there were ‘counter heteronormative’ (Menon 2007) movements initiated by different organisations. In 1992, ABVA (AIDS BHEDVAO VIRODHI ANDOLAN), a non-funded group for the first time filed public litigation against the constitutional violation of Section 377 in Delhi High court. In August 1994, ABVA organised the first ever protest demonstration demanding ‘gay rights’ outside the Delhi police headquarters. However, in 2001 the case was dismissed. There were several sex-workers organisations like Durbar Mahila Samanwaya Committee in Kolkata, Sampada Grameen Mahila Sanstha (SANGRAM) which contributed immensely as a part of HIV control projects. The existence of Section 377 was immensely hindering the process of raising awareness around sexual health and HIV/AIDS as it created stigma and fear amongst the individuals of queer community (Baset 2018). The event of receiving international funding for HIV/AIDS paved the way for creation of numerous NGOs interested in working in the domain of sexuality (Menon 2007).
In 1994, the National Conference on Women’s Movement in Tirupati was the first historic meeting in the context of the national women’s movement conferences, which provided a safe space for those who wanted to converse about their sexuality. It was for the first time, ‘sexuality’ was included as a full-fledged workshop theme of a conference with ‘Lesbianism’ as a subtheme of the workshop. In 1999, CALERI (Campaign for Lesbian Rights) was established which played an important role in the significant shift in what had so far been male dominated queer politics. Another important lesbian group is, ‘Sangini’ started by NGO NAZ Foundation, also played important role in bringing the issues around lesbian sexuality into focus (Tellis 2018). On 2nd July 1999, the first pride parade was celebrated in Kolkata which was then known as ‘the friendship walk’. This is one of the oldest pride marches in South Asia started by only 15 participants paving the way for millions to join the movement later.
Trust and Coalition
In 2001, NAZ FOUNDATION INDIA TRUST (a lawyers collective), based in Delhi filed another public litigation against the existence of Section 377. Before that in the same year, four members of Bharosa Trust and NAZ Foundation were arrested in Lucknow and were charged under Section 377 who were employed in doing nothing but spreading awareness around HIV/AIDS in Lucknow. In 2006, ‘Voices Against Section 377’, a coalition of 12-non governmental organisations and progressive groups (human rights, women rights, intersectional queer rights, and child rights groups) based in Delhi filed an intervention supporting the contention of NAZ Foundation to read down IPC Section 377. The non-governmental organisations such as CREA (Creating Resources for Empowerment in Action), TARSHI (Talking About Reproductive and Sexual Health), PRISM were one of the few who played an instrumental role in the formation of the coalition. In 2009, while Delhi High Court for the first time in the history of India decriminalised Section 377, the verdict was reversed by the Supreme Court in 2013. However, in 2015, eight curated petitions were filed by the renowned members of the LGBTQIA+ community including Navtej Singh Johar (Bharatnatyam Dancer), Sunil Mehra (media person), Ayesha Kapur and Ritu Dalmia (restaurateurs), and Aman Nath (hotelier) for the scrapping of IPC Section 377.
NALSA Judgement
In 2015, the Supreme Court’s verdict for the case, National Legal Services Authority vs Union of India and others popularly known as ‘NALSA’ Judgement questioned the corresponding understanding of sex and gender. The case was initiated by the petitioners who questioned how the constitutional rights of individuals beyond the binary understanding of men/women are being impacted and violated by state machinery. The verdict ensured transgender persons’ right to self-identity of their gender and guaranteed equal treatment to all individuals irrespective of their gender identities and expression. This is one of the significant and progressive judgements furthering the way for repealing of Section 377.
The presence of various queer non-governmental organisations like Jagori (Delhi), Nirantar, Sappho (Calcutta), Stree Sangam (Bombay), Sangini, Prerna (Bangaluru), National Legal Services Authority, Humsafar Trust, and others played a pivotal and extensive role in the historic judgement of 6th September, 2018. The Pride Parades across the country have essentially contributed to initiate the dialogue around queer politics in the public discourse.
What’s Ahead of this?
Even after two years of the historical verdict of decriminalisation of Section 377, the community still has a long road to equality in the country. Laws, while important, are only one part of the battle; but translating the spirit of the laws is still an uphill journey. There are plenty of rights yet to be recognised in the case of the LGBTQ+ community, from adoption to housing, and from healthcare, employment to education. The dissent against the recently passed Trans-Persons Act is the need of the hour and requires our immediate attention. The recent claim of Delhi High-Court around legalisation of the same sex marriage exhibits the inherent prejudice of hetero-patriarchal Indian culture. There is an urgent need to sensitise and train government officials and frontline personnel like police. The argument around inclusion of LGBTQ+ welfare within social welfare department, like presently transgender welfare falls under women and child welfare needs to be addressed.
The institutional spaces or primary agents of socialisation like family, school are often unsafe and traumatic spaces for LGBTQ+ individuals. Isolation, non-acceptance and humiliation have often eroded and impacted their sense of ‘self’. The manifestation of violence against the community in the form of forced marriage, honour killings, rapes, conversion therapy, separating tactics has resulted to poor mental health and psychosomatic disorders. The community, in this case, invests a lot of hope in school activism which is focused on building a critical mass of students who know their rights, legal know-how, are respectful of diversity and debate, and towards bridging the gap between theoretical justice and ground realities.
Conclusion The absence of involvement of the marginalised communities in the decision making process has deliberately created a sense of crisis around the constitution. The lack of understanding around various intersectionalities of everyday queer negotiations needs to be focused. The state machinery bodies who are in the frontline to ensure the protection of the constitution have often been the perpetrators in the first place. This brings to the table, the age-old question of, is the state protecting us or do we need protection from the state itself. To ensure a more inclusive, pluralistic and progressive reforms the presence of an active and aware civil society is essential. In order to guarantee the upholding of constitutional morality and a holistic transformation, the bridge between the civil societies and government in power is crucial. The reimagination of the existing social reality needs to encompass greater visibility of rights and acceptance of queer communities and intersectional politics into the larger discourse.
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