Many people, Many desires: Interview with Vivek Diwan
Director: T. Jayashree
Duration: 00:26:24; Aspect Ratio: 1.333:1; Hue: 25.844; Saturation: 0.354; Lightness: 0.172; Volume: 0.139; Cuts per Minute: 0.076; Words per Minute: 132.226
Bombay
AIDS
HIV
I am Vivek Diwan, lawyer by qualification, I am the project coordinator of lawyer collectives -HIV AIDS unit- which provides free legal services to HIV infected and whole lot of advocacy work, campaigns, research in human rights, law, connection between those and HIV and the vulnerability generally speaking.
Q: What is section 377?
Sect 377 of IPC was introduced by British in 1860 wherever they colonized and its essence is carnal intercourse against the order of nature with man women or animal, voluntarily also, is liable to severe imprisonment. Against the
order of nature was anything that is non procreative because in Christian victorian thinking in those days any sex which did not give birth, any sex for pleasure, any sex that is not fuctional sex for procreation was sin and therefore should be criminalised. Against the order of nature meant for procreation or non-procreation. secondly it also covered voluntary situations so even if you did it as adults with choice and complete consent, you would be penalized. And it is important to note that it does not distinguish between homosexuals and heterosexuals. Anyone who had sex which non penial-vagina would be covered under the law. A man and woman having anal sex or a man and a man having anal sex or oral sex- any of those situations would be covered. That's the essence of 377.
IPC
MSM
Vivek Diwan
Vivek Diwan talking about section 377.
consensual sex
criminalisation
homosexual
law
sec 377
Q :Have there been any convictions under this section?
We have been able to track roughly 60 judgements on 377 to since 1860. The way that happens is not all judgments get reported in your law reports, only those that reach the high court stage or the supreme court stage get reported.
Anything that happens in the district court level, you do not have proper compilation of judgements. So one doesn't know what has happened at this level throughout the country in the last 140 years. But we can say that 60 cases have reached the high court stage or above. Of those we have been able to track down 45 judgments. Yes, there have been convictions but we find generally, increasingly in the last decade that the law has been used in situations of child sexual abuse because there seems to be no other law in India that would cover child sexual abuse and they use sec 377 which is rather inappropriate in any case but they are using it. We have had very few cases of consensual sex between men having been prosecuted in any of these judgements. It's largely children, sometimes men and women where the woman has gone to court seeking divorce on grounds of cruelty because of anal sex that her husband had with her. You don't see that 377 is being used in the real sense against gay people, at least in these 45 judgements.
A law which then is used through local laws, it creates this environment of criminalisation which is then exploited through local police laws where cops can always come and threaten you with all kinds of things and that's the more general way in which it is used.
I just want to say one more thing on this.
I came across a magazine through a friend of mine called 'Crime and Detective' which is something you get at the railway stations in Bombay. It is one of these really tabloidy, seedy magazines published in some press somewhere with very cheap kind of depiction of sex, women and generally extremely moral kind of messages. And in many of those issues we see photographs of men walking in chain with this police inspector who caught this homosexual racket or caught two men having sex. It is a little hard to believe these magazines but if it is true then maybe there are a lot of convictions happening at that lower level which one doesn't get to know of. So it could be that it is still being used.
Vivek Diwan talking about convictions under sec 377.
child abuse
conviction
high court
homosexual
judgement
law
magazine
police
sec 377
IPC
Q: Is the law enforcement aware of this?
I would imagine that the law enforcement is aware. I think they know they probably do not know in so many words about which section of the IPC but there is a general awareness that it's not just a social stigma issue but this is an issue where we as police have rights to harass people because it is against the law. Now, I come from Bombay which is possibly more permissive in many wavs therefore police there are always on the look out for situations in parks, public toilets, one doesn't know. Therefore they are probably more aware of it. As far as police are concerned, I think they generally are aware. From what I know of, they rarely book you under sec 377. They'd probably book you under some minor public nuisance law, disturbing public peace kind of situation. As far as people are concerned, I think maybe there is not much awareness as one would have thought. But I think there is increasing awareness among gay people, a lot of are them are willing to come out and tell their families and friends, more than they ever have been. There is much more discussion in the media about it, there is much understanding of sexuality among the health care community also, although it is not satisfactory but I think there are these different sectors that are getting to know about these things. I think the television also impacts, the web impacts that kind of knowledge.
Vivek Diwan talking about law enforcement agencies with regard to sec 377
gay
harassment
health care
law enforcement
police
sec 377
stigma
vivek Diwan
AIDS
HIV
IPC
NGO
Q :What has been going on to actually change this section?
A petition was filed in 1994-95 by Aids Bhed Bhav Virodhi Andolan on the grounds that condoms were not being distributed in Tihar jail to prisoners as they were indulging in homosexuality, there was a petition on that ground in Delhi high court that this has to be allowed and the law is outdated. I think nothing came out and the petition dies a natural death. In 2001 the oraganisation I work for drafted and filed a petition on behalf of Naz foundation India, in Delhi. There is a reason why we filed in in Delhi, there is a law in India that states that if you file a petition in any high court in the country and the same issue is pending in another court, then the supreme court can take it up. So we file in the same court before we go to the supreme court, if we ever have to go to the supreme court we do not want to exhaust all our options in the supreme court itself.
The petition seeks not complete declaration of the clause as unconstitutional, but a reading down of the clause which means we want the court to pass judgment saying that here and after, this clause should be read as not to include consensual sex between adults, but only non-consensual and non-consensual sex would include children. We are very conscious of the fact that children rights are being violated and we are also very conscious that paedophilia does not mean homosexuality, that kind of connection continues to be drawn and it is ridiculous and it has to be put a stop to. We also know child sexual abuse is getting to the fore and we are getting to understand it better and those protections remain until a better law is drafted, but we do not want the court to completely knock this out, for sure.
Our basis for the petition is several:
Right to life which includes Right to privacy, under certain situations as human beings, no one can interfere in a situation where you are in consensus with another adult.
Right to health - which is also right to life and we believe that this law impedes any HIV/AIDS work, it's been seen to happen. NGOs have been stopped from functioning etc.
Right to expression and speech so there are several of these grounds we have challenged this section.
Vivek Diwan
Vivek Diwan talking about the measures to amend sec 33.
child abuse
health care
homosexual
law
law enforcement
naz foundation
rights
sec 377
AIDS
HIV
NACO
Q: Where is it at this stage?
In Sept 2003, it's nearly two years, the Govt has repeatedly been asked to file for respondent for the case, to file its responses to our case which it has just finally done after two years, The Govt is one of the several parties who have been made respondent. The National Aids Control Oraganisation (NACO) also has, it still has not filed its affidavit in reply. The attorney general has been called by the court to actually appear and in any case of constitutional importance the attorney general who is the highest legal authority of the Govt is asked come to the court but he unfortunately hasn't still which is disappointing and we await what he has to say. But the government has filed the affidavit finally and we are at a stage right now where we are trying to figure out a response to it because it doesn't support our case.
Finally, we are at a stage, trying to figure out response for this as it does not support our case. It says we believe this has to continue in the books for various reasons including concerns of public morality, child sexual abuse, they do not address the health issue at all of HIV they say we'll leave that to the National Institute of AIDS control organisation, we just received their reply we are now going to work on a response, the case comes up in another 2 and a half months we have to time to put together something and it was an expected response. You don't expect the government to fall over and agree with everything you say. In any case it wasn't a strong enough response so that's where we are at right now.
Vivek Diwan talking about the progress of their petition.
child abuse
government
health care
petition
public morality
sec 377
Q : What is the stand of National AIDS control organisation?
We don't know. We haven no clue, they haven't even appeared in court once. Their stand in the case, we don't know. But their stand otherwise is this NACO and National Aids control programme policy very clearly believes in supporting the rights of people infected/affected by HIV - the key strategy to dealing with this issue - their earlier response was taking away rights like arresting the affected people and isolating people ...which has been proved wrong all over the world, even the Indian Govt has come to the conclusion l0 years ago that this is a bad approach.
Actually guaranteeing rights and promoting rights is the way to get people into the health care services, into your fold and where you can treat them and people become more honest with their behaviour, are able to access behaviour change information and things like that. The Rights Based Approach is something that has been established through govt's policy itself. There is no two ways about that. The other approach, Preventive, which is their main focus and whatever little care and treatment they do should be, a thread of rights should run through all their programmes. Now how they go about doing this is by funding targeted intervention which means focusing on particular communities who are more vulnerable to HIV because of legal, social and economic circumstances including drug users, sex workers and men who have sex with men. Through their fund disbursement programmes, they fund men who have sex with men. On the one hand you have the NACO under the ministry of health doing this, supporting this, on the other hand you have this law which continues and there is a complete dichotomy, which has manifested itself in situations in India where NGOs have been shut down because of police not realising that this is work that is going on in the community. So that's their general stand on the policy but we haven't heard from them on the case yet which we hope to.
The thing about NACO is that they have been made party to the case so they haven't filed their reply yet so we do not know their stand in the case yet. But their stand in the case should reflect their stand otherwise. There stand otherwise is this - there is a National aids prevention control policy that is based on the fact that we need to promote the rights of people affected and infected with AIDS to effectively combat HIV which is philosophy that was not accepted by many countries, many years ago but now is widely accepted that only by empowering people do you let them resist the virus or even let them access services and information which prevents it from spreading further.
This is also reflected in our National policy and because of this reflection it is clear that programmes are being funded for prevention and palliative care, largely prevention programmes are being funded with that kind of an approach... now because of that the way Govt does intervene in different communities, it has targeted interventions with sex workers, drug users and men who have sex with men. They actually fund or disburse money to fund through the state AIDS mechanisms interventions with communities who are highly vulnerable including men who have sex with men. So on one hand you have the Govt funding these programmes and then you have this law and police taking action to prevent these programmes or continue to harass people who are gay etc.
The point is we believe that this criminalisation actually makes people much more vulnerable to HIV, there is this criminalisation which pushes them under ground. which does not let them lead fulfilling mental or physical lives, access services, information which leads to larger vulnerability so this crucial criminalisation has to go away in order to also protect people's health. NACO, I imagine, believes that too if it believes in a rights based approach.
Vivek Diwan talking about NACO's stance on the case and their approach towards AIDS control measures.
AIDS
AIDS control
HIV
Indian government
MSM
NACO
Vivek Diwan
communities
criminalisation
drug users
funding
policy
prevention
programme
rights
sec 377
sex workers
Kerala
Law enforcement
NACO
NGO
Q: We have seen in the past that National Aids Control Organisation programmes have been facing a lot of problems from the law enforcement agencies, so what has been their view?
They haven't unfortunately spoken very much .. When something happened in Lucknow two years ago, NGO was shut down and their officers were arrested for days on end and all kinds of accusations were made including carnal intercourse under sec 377 and all kinds of other stuff. We did not hear anything from the NACO but as a matter of law it was a very weak case so it was easy to get bail for those workers. However the case continues, they are out on bail still and we haven't heard very much from the NACO. This has also happened in situations of sex workers, NGOs in other parts of India and is increasingly happening but we don't hear much of a whisper. Only time NACO has really - though that's also been disappointing - really spoken out when a violation has happened which media is caught on too involved the situation where two children in Kerala were thrown out of school. Even that was such a disappointing response. One would have thought they would've gone there done a fact finding and said this cannot be allowed and gotten in touch with their respective state AIDS control society but far from that.
Vivek Diwan
Vivek Diwan talking about NACO and law enforcement agencies.
lucknow
sec 377
LGBT
MSM
Q: Do you think, given the phobia and silence towards homosexuality, would there be any change in the near future?
I think its inevitable that this change is going to happen. I think there are many more people coming out, there is much more information on this but when I say near future, ten years, two years or fifteen, I have no idea. But I think people are understanding the situation. I think it is so fundamentally problematic, the law that it would be obvious to any person with a sense of justice that its ridiculous that you are preventing consensual behaviour between adults and also being criminalized to the extent of I0 years of your life. You see that there are a couple of TV programmes on the issue. At the conclusion people have continued to believe that its all terrible, horrible, stigmatised and sinful but when they have been asked at the end of`the programme "Do you still believe that, criminalisation of adult consensual behaviour should be continued?" they have said "NO". As far as law is concerned, I do believe that even people who are not supporters of the community or the MSM community, LGBT community would come around to say it cannot be criminalized.. Then there is social stigma and others issues. Even in countries where the law has changed you hear about gay hate crimes all the time eg even in the most, so-called liberal kind of setting. In San francisco, Amsterdam, Australia and other places. Thats never going to go away completely, anyway. But the law cannot continue, that will change, am optimistic of that.
Vivek Diwan talking about social stigma and homosexuality.
crime
criminalisation
gay
gay hate
homosexual
liberal
phobia
society
stigma
vivek Diwan
AIDS
HIV
Q : Has all this AIDS work strengthened the gay movement here?
I think its definitely, unfortunately its been the disease which has got people together in the sense that they have even been able to organise and get some kind of funding for it but I think thats also true about the way thing emerged everywhere in the world around gay issues. It has taken a disease to do that for instance I have friends abroad who've told me that its not the 'stone wall riots' that got the gay activism really going, but it was the crisis of an epidemic that got people organised and started work together. So I think that has created a space for the gay community to create a physical space.
I think the Internet has helped lot, there is space of privacy there which you don't otherwise get in terms of communication which has helped people to talk to each other. So yeah, I think it has but I think it has gone beyond that. I think there are many people now, fortunately, in the gay community who don't want to make that link all the time and say that this is fundamental rights issue and has nothing to do with the disease. So those kind of spaces have been created.
Vivek Diwan
Vivek Diwan talking about AIDS as an epidemic strengthening the gay movement.
community
gay movement
internet
Q : Going back to sec 377, even if there is a reading down, what about discrimination? How do we fight discrmination?
Yeah thats a difficult one, I think we need anti-discrimatory law in particular, just because you are a transgender person or an effeminate man or whatever stereotypes you don't follow which you should according to society, how can jobs or health care or any other services not be made available to you just for those reasons? I think you might need a special law to kind of to change that kind of stuff and also the discrimination in terms of inheritance partners, couples etc. Those are the battles that have to be fought but if you think about it, the gay movement has generally been a very young movement. Its only 25 years ago that it really got going, even in the west and it has achieved a lot in that time but historically its only 25 years. And they are currently fighting about their marriage rights and inheritance rights which should happen but first we need to get around the basic issues of criminalisation.
Section 377
Vivek Diwan
Vivek Diwan talking about discrimination.
criminalisation
discrimination
gay movement
health care
inheritance
jobs
rights
transgender
Q: What is the scene withing the law community, say as a lawyer when you are talking about these issues, what is the reaction?
I think its interesting, I am gay myself and I wasn't out for a long time, when I got into the professional kind of practicing in the High court of Bombay, I certainly felt as a young lawyer that I don't know how much it would compromise my career then I got into HIV aids work which is anyway something I wanted to do primarily and in this work those spaces are there and for me in that work space was not a problem. But I increasingly seem to feel that the legal community has some surprises just how liberal it can be although it appears to be highly conservative British kind of notion of how things are. So I wouldn't be surprised but its so difficult to generalise these things. You hear some fabulous sound bytes from people in positions of influence in the legal community or in the country generally, who are lawyers and say that this is all nonsense and it must go. You hear some refreshing voices like that but off the record unfortunately, I think that kind of support is possible within the legal community.
Vivek Diwan talking about the mindset withing the legal community.
AIDS
Gay
HIV
Legal
Vivek Diwan
community
lawyer
liberal
Q: Will you be mobilising these voices?
I think we have to, think we have to mobilize voices from outside of the queer community who are supportive of queer communities whether it be doctors or lawyers, architects or whoever I think thats a strategy in terms of acceptance also that others in the mainstream have accepted you so you better accept us completely. So I think the strategy is good and it has to be used but am not sure how easy it'll be to get people to publicly voice their support but it has to worked on.
Vivek Diwan talking about mobilising support for the queer communities.
acceptance
community
gay
public
queer
support
vivek diwan
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