Love And Lawfare : How Indian Courts Became a Battleground For Queer Rights

Vikram Kollmanskog (2016)
Gaylaxy. Empowering Expressions (11.09.2016)

In India and worldwide many battles for and against LGBT/queer rights are fought out in the courts. This so-called lawfare is a strategy with potential advantages as well as risks. Overall, Indian LGBT/queer activists seem to have been successful.

Since the late 1980s, Lawyers Collective had worked with HIV-affected people and NGOs such as Naz Foundation (India) Trust. Increasingly, Naz was experiencing problems with police harassing outreach workers. Lawyers Collective’s analysis was that this was happening partly due to section 377, the anti-sodomy law first introduced by the British in 1860 and still in the books of Independent India.

Vivek Divan, who was with the Lawyers Collective, explains why they chose to take the matter to court. “There was no way that this would be something parliamentarians would consider at the time. We were trained as law students in the rich Indian history of Public Interest Litigation, trained to think that you can seek and get justice through the courts since the 1970s.”

However, Indian lawyers are also very aware that the personal views of judges often play a big role in decisions. This is also the case in other contexts, such as in the USA. For a while, Lawyers Collective had been trying to address this issue through judicial sensitisation on HIV and related issues, including by inviting Edwin Cameron from South Africa and Michael Kirby from Australia, both senior judges and gay, to have workshops with Indian counterparts. A US study shows that contact between gay and straight people predict attitudes toward gay men better than any other social psychological variable.

In 2001, Lawyers Collective and Naz Foundation filed a petition. The first big surprise was what Vivek describes as “the massive attack and backlash from some quarters of the LGBT community.” Critics within the community raised various concerns, many similar to those raised in the US context and elsewhere against lawfare as a strategy. Several argued that the goal was social transformation more broadly and law and litigation had only a limited impact, including that the police and members of society would harass sexual and gender minorities regardless. Others were concerned about potential negative impacts. The issue of timing was raised, that India and the courts were not ready and it might backfire with even harsher legislation being introduced. An overall concern for many had to do with process, that it was not representative and consultative. Vivek says, “It was very emotional. I even lost some friendships, but many were fortunately regained.”

Lawyers Collective decided to go ahead with the case, but also reach out to the community and start extensive consultations. “With the consultations there was a massive shift in empowerment. We were saying this is the queer community’s case and not just the case of lawyers or Naz. In a very real sense we got a collectivism and ownership that we had never seen before or again,” says Vivek. When in 2004 the Delhi High Court declined to consider the petition, saying that the petitioners lacked standing, the decision to appeal was collective and community-based. In 2006 the Supreme Court decided that the doctrine of Public Interest Litigation did in fact allow for the petition, and the Delhi High Court had to consider it on the merits.

In 2008, several organisations intervened in the case on the side of the petitioners as the coalition Voices against 377. “Many of us had multiple roles such as being both feminist and gay, so we brought different issues into different fora. It was truly intersectional. Human rights organisations, women organisations and others were standing with us,” says Gautam Bhan, who has been active in Voices. “Our strategy was to fight the case, but not just in court and not have the movement reduced to the case.”