A COUPLE OF HOURS AFTER THE SUPREME Court’s December 11, 2013, judgment on Section 377 of the Indian Penal Code (IPC) criminalised the lives of millions of persons across a range of sexualities, its effect on the streets of Delhi was only too discernible.
Anjan Joshi, executive director of the Society for People’s Awareness Care and Empowerment, which spreads awareness about the human immunodeficiency virus (HIV) and acquired immune deficiency syndrome (AIDS) among the MSM (men who have sex with men), transgender and hijra communities, spoke of a perceptible change in the attitude of beat police officers and constables in police stations across the city the next morning. “I took a round of the areas around Kashmere Gate, Paharganj and the Dhaula Kuan police stations. There are areas where our volunteers work in distributing condoms among members of the community, conducting meetings and making crisis interventions.” Anjan Joshi recalls the cold stares and disapproving glances that he met with from police officials the day after the judgment. “One of them flatly told me, Ab aapki nahi chalne waali” (You can’t have your way now).
Following the re-criminalisation of homosexuality, there are palpable fears of a return to the dark days of the recent past when conducting awareness and advocacy programmes on HIV/AIDS was a nightmare for most volunteers. It was equally difficult for MSM, hijras and transgenders to get access to public health. There were incremental changes in the attitude of the police, doctors, chief medical officers and the staff in government hospitals towards lesbian, gay, bisexual and transgender (LGBT) community, especially the more visibly queer persons, after the progressive judgment delivered by the Delhi High Court in July 2009. The return of this law poses a grave threat to this ongoing process of sensitisation. Also, the incidence of HIV/AIDS among the transgender and MSM communities had gone down considerably in recent years with increasing awareness and advocacy programmes about the epidemic on the ground.
Shaleen Rakesh, who is with India HIV/AIDS Alliance, and was with the Naz Foundation (India) Trust at the time of filing the petition in the High Court, explained: “While filing the petition in the Delhi High Court in 2001, both the public health aspect and the issue of equal rights for sexual minorities were factored in. In India, HIV/AIDS was a concentrated epidemic, with higher rates of prevalence among sex workers, MSM, transgender persons and drug users. While the state can create a broad, generalised health infrastructure, community-based organisations are required to conduct mass outreach programmes. In 2005-06, the prevalence of HIV/AIDS among the transgender and hijra population was as high as 40 per cent. According to recent estimates of the National Aids Control Organisation (NACO), the prevalence of HIV/AIDS among hijras and transgender persons is said to be 8.82 per cent, which is still disproportionately high compared with the HIV prevalence of 0.23 per cent in the adult population. The rates of incidence are still quite high and a lot of work on the ground in terms of creating awareness remains to be done. A discriminatory law will only come in the way of this process.”Patterns of discrimination
The reintroduction of Section 377 is a grim reminder of the past when harassment of outreach workers both by the police and by local goons was routine. Rakesh remembered a particularly gruesome incident in 2004 when he was working with the Naz Foundation.
A drop-in centre called Milan was run by the Foundation in East of Kailash for counselling, outreach and clinical aid in case of sexually transmitted infections for transgender persons. In 2004, a violent homophobic assault by a group of about 10 boys forced them to shut down the centre the next day. The transgender persons and hijras who used to frequent the centre were too scared to lodge a first information report with the police, fearing further harassment.
More recently, in 2011, Malika (name changed on request), a hijra suffering from a severe urological infection after undergoing a sex reassignment (SRS) surgery, was refused treatment by a government hospital in Kolkata. This is a persistent problem, and a number of hijras turn to quacks for SRS services as most of them cannot afford the exorbitant fees charged by private clinics. Malika had travelled some 600 kilometres from Kolkata to a clinic in Bihar for the operation. Government hospitals are generally unsympathetic to such cases.
There have been instances of insensitivity and harassment both by the police and by the state authorities in the more recent past. Simran Shaikh, a programme officer with Pehchaan, a consortium of 200 community-based organisations for MSM, transgenders and hijras in 17 States, recounted some of the challenges she faced on the ground while building up community-based organisations.
“In 2011, when I first started the initiative of building community-based organisations in remote villages of Punjab, Delhi, Bihar and Uttar Pradesh, which had no forms of targeted intervention earlier, I faced massive resistance from the medical establishment initially. A Chief Medical Officer in a district office once bluntly told me: ‘There is no homosexual in my district.’ Members of the community were not ready to visit government hospitals because of the hostile attitude of the doctors and nurses and other staff. Even for ordinary health problems, approaching a government hospital was difficult because of the jibes and taunts. A lot of counselling was required to change the attitude of the doctors and the chief medical officers.”
The advocacy and awareness programmes have introduced some visible changes. Shaleen Rakesh explained how the Delhi High Court verdict had given a positive momentum and greater visibility to the community. “With the verdict wiping away the stigma of criminality, a large number of people were coming out to their families. This was making it easier for organisations at the local level to identify and create awareness among people and thereby contribute towards the strengthening of public health interventions.”
Shaleen Rakesh also pointed out the obstacles to the movement as a result of re-criminalisation, “The incidence of HIV/AIDS amongst MSM and transgender communities is still very high compared with that in the general population. In a situation where it is important to keep up the momentum of awareness and advocacy, there will be a sharp drop in the ability of outreach workers to approach people who would be scared to come out.”
Simran Shaikh pointed out some of the visible changes in the attitude of government servants, “In my experience of building up Pehchaan, there were perceptible changes by the middle of 2012. About 30 new community-based organisations were started in several districts across Punjab, Delhi, Bihar and Uttar Pradesh. In government hospitals across Punjab, we managed to stipulate one day when MSM, transgender persons and hijras could visit for health check-ups. Earlier, people from this community had to stand in long queues and often put up with unwanted jibes and taunts. Also, we were able to get more people from all walks of life, including doctors, lawyers and the police, to participate in the crisis response teams for emergency situations. The return of the draconian law has a major emotional impact on the community. It encourages persons in charge of public health care systems to discriminate against you because you are visibly ‘different’ from the average male or female.”
Simran Shaikh lamented, “My community was coming out of the closet and looking forward to a life of dignity and equal access to public services. This process has been dealt a huge blow by the regressive judgment.”
NACO, in an affidavit submitted in 2007, supported the petition filed by the Naz Foundation, recognising the need for decriminalisation in order to improve access to targeted HIV/AIDS interventions.
Anjan Joshi hoped to cope with the situation through awareness programmes among the police and other government agencies. “We want to hold sensitisation programmes with the police so that they do not stop meetings of the community. Also, efforts to spread awareness about HIV/AIDS at the community level should not be hampered.”
Meanwhile, the “minuscule” population, as per the Supreme Court’s lexicon, of 4.27 lakh MSM, transgenders and hijras, will continue to live under the shadow of fear and persecution without being able to make the basic claims on the state of the right to health.