Personal Reflections: Section 377, Family & Emancipation

[Vivek Divan is an Indian lawyer and longtime queer activist.]

I have recoiled from writing about this, but do so given that it may resonate with the constituency that the International Commission of Jurists engages with. Those who know me are well aware that I don’t like to namedrop. Yet, I did at a meeting of the ICJ in New Delhi in February 2018. And, after doing so I was mortified almost immediately.

The occasion was a judicial dialogue to discuss legal issues of current import in the context of privacy and dignity in India. Part of the effort was to sensitize judges on the intersection of these aspects with human rights related to sexual orientation and gender identity (SOGI). I was invited to speak on this last topic along with esteemed practitioners and members of the bar. Since other speakers covered the contours of law, I thought of trying to humanize the issue by personalizing it. One way of doing that is to speak of being queer oneself, which I did. Another way was to connect myself to discussions that had taken place at the meeting in relation to the ICJ thereby perhaps making a linkage that was more relatable to this particular audience.

Until that day I was unaware that my grand uncle, MC Setalvad, India’s first Attorney General played a key role in elucidating the “Rule of Law” in ICJ’s Delhi Declaration of 1959. I was particularly moved by that information. “Mota mama” (“senior uncle”), as I (and others in my family) used to call him, was a distant but distinct memory. I didn’t really know him – he passed away when I was four. But I thought then that he may have been gratified to see a descendant participate in efforts to expand understandings of fundamental rights that invigorate the Constitution he championed and served. My mortification came from the thought that I’d deployed my ‘social capital’ in a way that would perpetuate my class privilege, which I’d hitherto assiduously avoided doing.

In my experience working on SOGI and rights issues for two decades, the most important discussion is how fundamental rights can be harnessed to protect essential aspects of physical and emotional safety that are commonplace in regular queer people’s lives. For an audience of judges, such experiences need to be made real to illustrate the harm that hostile legal frameworks cause. Fortunately, speakers who addressed the meeting before me had done just that, somewhat mitigating my self-induced embarrassment.

I have been involved in the battle to rid India of section 377 of the Penal Code from early on. I managed the pioneering non-profit Lawyers Collective HIV/AIDS Unit, and it was there in 2000 that we began legal research that led to the public interest writ petition that was filed in October 2001 for Naz Foundation India Trust. As part of the core team that led this initiative, we also precipitated an intense and expansive process of consultation over several years that included meetings across the country with scores of queer people to deliberate, discuss, strategize, explain the law, and support the strengthening of the case through evidence before the courts.[1] Indeed, this was a unique process that took a massive effort on the part of many. For much of the last 18 years the case was a constant presence in my life. And, because it was, inevitably it was an issue of discussion in the family. Exceptionally, it was not a particularly controversial issue – all of my family members knew I was queer for many years, and agreed with the irrelevance and stupidity of Section 377 as it pertained to consensual adults. Some of them even featured in its tumultuous journey. My father was a lawyer, and appeared for Naz in the review petition when it was thrown out in 2005 by the Delhi High Court on grounds of standing. A maternal uncle appeared for parents of queer people in interventions they had filed. My brother-in-law, a psychiatrist filed an affidavit as a mental health expert. My brother, also a lawyer, appeared for the coalition Voices Against 377, the intervener in the Delhi High Court and the Indian Supreme Court, bringing powerful personal testimonies of queer people to bear for the first time in proceedings. Many of those who were in court (and I) were moved to tears by the eloquence and power of his arguments – of law and in articulating queer marginalization – in court.

When the Supreme Court finally declared section 377 to be unconstitutional as it pertained to consensual adults in September 2018, I fundamentally felt relief. There was joy, of course. But after all these years there was essentially relief. The case was over. We queers could now contemplate fighting to claim and give meaning to our other fundamental rights, including to challenge the impunity of domestic and public violence, to publish without fear of obscenity and censorship laws, to create associations, to access public spaces, education and housing free of discrimination, to create families, apply for joint loans, and provide medical consent by proxy for one’s partner.

With all of this were many other emotions – the gratitude for a family that was always enveloping in its love, and for parents who understood that difference was not threatening but to be cherished. And, there was sadness that this victorious moment could not be shared with my father who had passed away 18 months prior. I said a few words at his remembrance that I reproduce below. They best encapsulate what I feel he was and what he meant to me in this battle for emancipation.

“He dealt with the vast generalizations that the law frames life in, but he never generalized about the plurality that life revealed… He was extraordinarily broad-minded in his attitudes by the standards of his generation or those that have followed. And, he was borne of the Indian Constitution. As a lawyer, the values it espoused were the values he soldiered to protect. And, as a person he tried to reflect those values in his life – of dignity, of fairness, of speaking without fear, and speaking truth to power, of dissenting and of respecting diversity of opinion and being. In one of my more despondent moments, when I felt that my queer community was dealt an unfair and brutal blow by a ruling of the Supreme Court, he reminded me that a free society always harbours hope, and it is through the continued claiming and contestation of rights that democracy and freedom can truly bloom.”

[1] The detailed minutes of these meetings are available at http://orinam.net/377/background-of-sec-377/community-effort-battle-against-s377/. They make for fascinating reading and describe the manner in which a collaborative community process came to define the courtroom battle against section 377.