ARTICLE: What can MARPs advocates in HIV learn from India's success in overturning s377 of the Penal Code which made adult homosexual relations punishable with a ten year prison term? APMG Asia Pacific undertook a media scan and interviewed some key Indian advocates to find out more.
[Author: Scott Berry. With thanks to Aditya Bondyopadhyay and Ashok Row Kavi for their guidance].
On July 2, 2009 the Delhi High Court annulled the law criminalizing adult homosexual relations with a ten year prison term. Section 377 as it was known was a section of the Indian Penal Code left over from British imperial rule. In subsequent years s377 had been used to persecute LGBT people and silence their human rights defenders. It had massively stifled HIV efforts in the country, making volunteers and outreach workers vulnerable to police harassment and arrest. It had been used to extort money from men who have sex with men and had forced them underground, adding to the difficulties of undertaking effective HIV prevention education for gay and other men who have sex with men and transgendered people. The Naz Foundation India Trust along with India's Lawyers Collective and other community advocates and groups worked for eight years for the decision that finally came on the 2nd July.
The main focus of the Naz Foundation India Trust petition was to challenge the law on the ground that it violated the health rights now considered by the Courts to be covered under the fundamental rights to life as given in Article 21 of the Indian Constitution.
Indian activist and lawyer Aditya Bandopadhyay expressed the collective joy and hopes for the future of those advocates when he told the BBC "we are elated. I think what now happens is that a lot of our fundamental civil rights which were denied to us can now be reclaimed by us."
About most-at-risk-populations
Most-at-risk-populations (MARPs) for HIV are those engaged in behavior high risk for HIV transmission including commercial sex work without condoms, sharing injecting equipment and sex between men. At this point in the epidemic then, most-at-risk-populations for HIV include sex workers and their clients, IDU and their partners, MSM and transgender people. As well as the behaviors that place them at high risk for HIV transmission, MARPs face high-levels of social and structural stigma and discrimination that makes them more vulnerable to HIV infection including major human rights violations, including criminal sanctions. An example of the outcome of this sort of hostile environment was described by staff of Kios Atma Jaya at this years' International Congress on HIV/AIDS in Asia Pacific. Kios Atma Jaya is an IDU outreach program of the Atmajaya Catholic University in Indonesia. They described a large proportion of their client group who resist going to clinics even when seriously ill with HIV or Hepatitis. A small but significant percentage of the clients they refer to mainstream clinic services die before getting service or while receiving it. MARPs are more likely to find themselves in situations where they are unable to get the information or resources they need to prevent HIV and more likely to resist accessing health care.
MARPs, especially women, MSM and transgendered people are particularly shamed and punished for their transgression of social constructed norms and expectations. They stay hidden and may avoid disclosure of their risk behavior to medical and other personnel for fear of social persecution and exclusion. This in turn adds to their cycle of risk and vulnerability.
It stands to reason, given this formidable social hostility that MARPs find it difficult to engage in leadership, policy and advocacy related to HIV. Lifting legal sanctions against them is now considered an essential step in creating better health outcomes and active participation in HIV prevention and care. For example, a recent review of Global Fund Country Coordinating Mechanisms by Fried and Dowalski-Morton found that, out of sixty-five CCMs they reviewed, just five had representatives easily identifiable as LGBT organizations or members. Another study commissioned by the Global Fund on the proposal development and review process in seven countries in Africa, Asia, Latin American and the Caribbean, found that "marginalized groups were seldom discussed as an issue per se of particular relevance" by CCMs. This means that governments determine their country HIV priorities without the participation of or representation of MARPs. The result is little evidence of the prevalence of HIV among MARPs in many countries. The Global Fund represents one of the most innovative programs to scale-up and deliver high intensity, targeted programs that can disrupt HIV transmission in the 'hotspots' for HIV in many countries.
What can MARPs advocates learn from India's success?
What can advocates, whether sex workers, injecting drug users, MSM or transgender people, learn from India's success? Can the experiences of the movement to change s377 be applied to MARPs-based advocacy in other countries and the lessons learned used to change the legal, social and health-related impediments to effective prevention of HIV and support for people living with HIV (PLHIV)? We wanted to know whether the experiences of s377 advocates might help to predict the sorts of problems faced and solutions found in broader struggles for MARPs human rights. We came up with six themes posed here as suggestions for advocates taking steps to change criminal law for most-at-risk-populations in Asia Pacific:
- Make a conscious, collective decision to change the law and then do it
- Choose your key partners carefully and add partners strategically as the movement progresses
- Expect problems, delays and setbacks
- Be in it for the long term
- Develop a rational, coherent and well thought through set of arguments
- Educate and communicate your arguments to the broader community – especially target the legal fraternity, law enforcement, politicians, the media and relevant health and welfare sector leaders
What follows is an exploration of each of these themes to analyze and present the views of some of India's s377 advocates.
- Make a conscious decision to change the law and then work collectively to do it
In 2000, HIV and LGBT advocates took a decision to work collectively to remove sanctions in the criminal code. There was opposition to the decision both from within and outside HIV and LGBT circles. Some quarters of the community didn't think it was the right time, Anand Grover, who headed the legal team explains. Some warned "the climate was not right" for this sort of fight while others outside the LGBT community were just "uncomfortable" with gay men and TGs. Others misunderstood the nature of the petition and the team leading the change to s377 needed to take time to explain and work collectively to reach consensus.
A strategy to listen to and involve stakeholders in the decision to act and facilitate change was adopted from the start. Anand explains "we involved the community from day one. In this case it was not lawyers who decided how the case would go. HIV in India and other places, it is the community who are the deciders. They decided whether we should go to the Supreme Court." In the end it was clear that "criminalization of private practices of groups vulnerable to HIV impedes HIV programs and goals. It had to be addressed."
Aditya Bondyopadhyay, a leading advocate of the movement to change s377, highlights that "the progress of the case was an opportunity for the community to mobilize cohesively, to an extent where it can now be called a viable movement."
- Choose your key partners carefully and add partners strategically as the movement builds momentum
A key organizational leader in this movement was The Lawyer's Collective of India (Go to: http://www.lawyerscollective.org). The Lawyer's Collective is a CBO with a history of representing PLHIV, mounting legal challenges for HIV treatment and representing women fighting for their human rights. Its organizational principles are embedded in the emancipation of marginalized sub-groups in Indian society. The Lawyer's Collective was crucial to the success of the movement because it brought the necessary legal expertise to fight the case as well as the knowledge of key leaders in the legal fraternity to sensitize as part of the community education process.
The other key partner was The Naz Foundation India Trust, an MSM and HIV agency agency with an active role in HIV prevention, care and support in India. And it was Naz Foundation India Trust that ultimately filed the petition (Go to: www.nazindia.org).
Why was it an HIV organization that submitted the petition? Anand Grover explains that some within gay community circles were concerned that a gay group should have led the High Court petition and not an HIV organization, even if that organization was running MSM and TG programs. But, as he says, "in 2001 who would file a petition?" The answer he says is "no one". And this goes to one of the key issues in MARPs based advocacy at country level – in situations where legal impediments exist, MARPs-based groups and organizations are excluded from participating fully. They operate 'under the radar', they may not be formally organized and may be without the capacity to lead and bring about change. In India, it was possible to register a LGBT organizations before the s377 change. However, the government could theoretically de-register a GLBT organization if it was determined to be working against the law or for an illegal purpose or intent.
At different time periods, depending upon the particular needs of the time, the coalition supporting the petitioner (The Naz Foundation India Trust) involved various individuals and organizations in the sensitization process including international agencies like the International HIV/AIDS Alliance and local LGBT organizations such as the Humsafar Trust.
- Expect problems, delays and setbacks
At the beginning of September 2004, the movement experienced a major setback in their campaign to annul s377 when the High Court decided to dismiss the Naz Foundation India Trust's petition. We asked Shaleen Rakesh, previously of the Naz Foundation India Trust, how he reacted to that news and he explained the High Court rejection was a deep shock. "After three years of going back and forth the High Court has thrown out our petition on the flimsiest and most baffling grounds," he told AFP. The High Court ruled that it was not legally possible for a petitioner to challenge the Penal Code when they were not directly affected by it. Aditya Bondyopadhyay explains that the decision to dismiss the petition was against the established jurisprudence of Public Interest Litigation, wherein it was the law that any third party can file and prosecute litigation for marginalized populations incapable of accessing the Courts themselves. "We are not prepared to sit back and accept what the Court is throwing at us. We are studying legal options in front of us and will file a review petition in the High Court or take the matter to the Supreme Court," Shaleen said at that time.
In response, groups against the Naz Foundation India Trust petition celebrated the ruling as a win. Government lawyers had told the Court that the abolition of the law "could result in delinquent behavior" and the erosion of "strong Indian family values."
But over the following years the movement to change s377 even managed to convince government- at least the Ministry for Health – that this change was necessary. In their submission to the High Court the Indian Ministry of Health said "while the National AIDS Program has achieved some measure of success in reducing HIV among sex workers, rising sero-prevalence among homosexual men has been a cause of worry. With criminal sanctions gone, we hope to reach out better to men who have sex with men and encourage safer sex." It is significant that they put this position to the Court when other Government Ministries mounted strident homophobic opposition to any change in the law, including suggesting the affidavit from the Ministry for Health be rejected by the Court.
Raising challenges to the law will also provoke strong opposition from other corners of society. There were times when raising awareness about s377 created negative press and social reactions to LGBT across India. Immediately following the High Court's decision of July 2, the Students Islamic Organization issued a statement against it, saying it was a setback for HIV prevention and that the right to personal liberty should not be used to justify anti-social behavior. Incest and sex with animals," the Organization claimed, "would then also be legalized." Managing these kinds of civil challenges becomes part of the process for change.
- Be in it for the long term
This was an eight year battle. Individuals and groups involved needed to be prepared to stay in for the long haul. Anand Grover explains that you need to be determined and focused on change. This is not a challenge for "short-term, fly by night operators" he says. A lot of people want publicity. But, Anand advises, follow the principles of the Baghavad Gita - be like a rock, and do not expect any reward or benefits. Aditya can recite parts of the Gita word-for-word and he explained that the section of the Gita is as follows: "Do you duty without any regard for consequences or rewards".
- Develop a rational, coherent and well thought through set of arguments
Civil society is not one homogenous lobby group agreeing on all issues. Rather, it is a concentration of varying interests that struggle to be heard and can compete for limited resources. Nowhere is this more the case than in the MARPs-based civil society responses to HIV where limited resources intersect with high levels of discrimination and need. Expect much competition between civil society actors for these limited resources. This is democracy in action and it's what civil society is - it should be honored as such.
But in the context of India's success, the development of a rational, coherent and well thought through set of arguments appears to have been an essential element in convincing the legal fraternity, members of government and other significant community leaders that this change was necessary. The head of the Naz Foundation India Trust explains the intensive work on research and careful consideration of arguments by The Lawyer's Collective as one of the factors in their success.
- Educate and communicate your arguments to the broader community – but particularly target the legal fraternity, law enforcement, politicians, the media and relevant health and welfare sector leaders
At ICAAP 9, Anand Grover explained that "as lawyers we don't take the time to sensitize all stakeholders – but this is important and particularly it's important to sensitize Judges, the legal community, the police. They also realize and understand. Police say 'Why are we trying to catch men having sex with other men or drug users when we have other issues that are more important?' Over a period of time you are able to have an impact on sensitizing stakeholders who are part of the establishment and also the opening up of situations where gay men could form into groups as HIV service providers."
Aditya Bondyopadhyay emphasizes the large amount of work done on the media so that in the end they had a sensitized and supportive media, which went a long way in transforming the position of the government too this issue. "Their contribution," he highlights, "cannot and should not be slighted."
Ex-Australian High Court Justice, The Hon Mr. Michael Kirby was one international activist invited to participate in the sensitization program. At ICAAP 9 he described how the Lawyer's Collective "organized seminars throughout India and just talked about these issues in the presence of Judges and lawyers. Often it's a matter of personifying it," he explained. "In terms of the White Australia policy, we were able to change it when people began to meet Asian Australians and this is the way to change attitudes toward MSM."
APMG Asia Pacific interviewed Ashok Row Kavi, the Executive Director of Humsafar Trust, a GLBT and HIV organization in Mumbai (Go to: www.humsafar.org). Ashok was recruited by the Lawyer's Collective to lead targeted community sensitization workshops targeting particular segments of Indian society. Those workshops were meetings between GLBT groups and Indian leaders and included the legal fraternity and law enforcement. He explains "I stood in front of Judges... people who came from deep within the wellspring of Indian society and culture – they came from deep within Hinduism – and I talked to them about being gay... the injustices perpetrated against us... the impediments in HIV work."
Shaleen Rakesh, now Director of Technical Support for the India HIV/AIDS Alliance explains that the July 2 verdict "is a major step forward but there is still much more to do in terms of engaging communities in the response to HIV." Ashok Row Kavi told the BBC "the social stigma will remain. It is still a long struggle. But the ruling will help in HIV prevention. Gay men can now visit doctors and talk about their problems. It will help in preventing harassment at police stations."
Finally, Ashok Row Kavi offers this advice to other advocates, he says "look at the turmoil of India, its tumultuous identities and how all these identities are demanding to be heard... to make the invisible visible." It is a long struggle but it is possible. The outcome in India has been good for the country he says because "the state has benefited and guaranteed for itself legitimacy and relevancy for its citizens."
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