Resisting Stigma and Homophobia: Arvind Narrain's Expert Testimony, Bangalore Panchayat (Jeevanandhan Rajendran)

Resisting Stigma and Homophobia: Arvind Narrain's Expert Testimony, Bangalore Panchayat

Director: Jeevanandhan Rajendran

Duration: 00:10:09; Aspect Ratio: 1.333:1; Hue: 11.566; Saturation: 0.222; Lightness: 0.187; Volume: 0.136; Words per Minute: 205.140

Action Plus, a network of 14 organisations working on HIV/AIDS in India, conducted a series of People’s Panchayats in 2009, which sought to understand people's battles against Stigma and Homophobia through the voices of survivors and resistors. The Panchayats sought to address the devaluation of livelihoods and life systems of entire communities of people who practice alternate sexualities, and the erosion of rights or dignity.

This series of People’s Panchayats was held in five cities in India. The first one was in Bangalore on January 28, 2009, the second in Hyderabad on February 6, 2009, the third in Chennai on March 21, 2009 and the fourth on April 11, 2009 in Pune. The fifth and final one was held in New Delhi on April 24, 2009.

Each of the Panchayats followed a similar structure. The interactive meetings were structured to have affected members from sexual minority communities share their personal experiences of living with stigma and homophobia. These were the deposers. Then the two-member expert panel shared their thoughts and ideas based on their experience in the field. The audience comprising of the general public, NGOs, media, opinion leaders and religious communities made their queries and comments at the end of the deposition. There was a brief audience interaction following which the jury or the panch gave its ‘verdict’.

In this video, Arvind Narayan, an Expert at the Bangalore Panchayat, shares his reactions to the testimonials heard, as well as to the verdicts pronounced by the various religious leaders present. He also sheds light on the recent history of the gay rights movement in India, highlighting the legal aspects of the movement in particular. Mr. Narayan expounds on the Constitutional right to “Live with Dignity”, and shares the ways in which Section 377 of the Indian Penal Code violates this right.

Bangalore
People's Panchayats on Resisting Stigma and Homophobia; Action Plus - a Coalition for Rights, Education and Care in HIV and AIDS. Arvind Narrain, an Expert at the Bangalore Panchayat, shares his reactions to the testimonials heard, as well as to the verdicts pronounced by the various religious leaders present. He also sheds light on the recent history of the gay rights movement in India, highlighting the legal aspects of the movement in particular. Mr. Narrain expounds upon the Constitutional Right to "Live with Dignity", and shares his opinion of the ways in which Section 377 of the Indian Penal Code violates this right.
We've been part of the lesbian, gay, bisexual, and transgender struggle over the last ten years and our debates have always been with the state, the law, have been on occasions with the families who have been oppressive to sexual minorities but we have never got the opportunity to talk with religious leaders and know what they are thinking about.
I'll give you a sense of what we are doing for the last ten years. Law does not have a space for sexual minorities. Among the issues, which the community has faced in the law, is of the struggle around section 377 of the IPC. What that does is it criminalizes what it calls carnal intercourse against the law of nature with any man, woman or animal. What in effect it does is that it penalizes people for the choices they choose to make in intimate relationships. For example, if you're a man who has a sexual relationship with a woman in your own house, it's no one's concern, but if you're a man having sexual relations with a man in your house or outside your house, then it is the state's business. The state can prosecute you for having a sexual relationship with a man because of this particular law. There is a law in this country, which penalizes you for the choices you make, for the intimate decisions that you make.
action plus
aids
alternative law forum
amartya sen
arvind narrain
bangalore
care
coalition
education
expert
hiv
homophobia
indian constitution
indian penal code
naz foundation
panchayat
people
resistance
right to live with dignity
rights
section 377
stigma
vikram seth

Dignity/ Privacy

The Court begins by adopting a view of human dignity that privileges the ability to freely make choices about how to live one's life. "At its least, it is clear that the constitutional protection of dignity requires us to acknowledge the value and worth of all individuals as members of our society. It recognizes a person as a free being who develops his or her body and mind as he or she sees fit. At the root of the dignity is the autonomy of the private will and a person's freedom of choice and of action. Human dignity rests on recognition of the physical and spiritual integrity of the human being, his or her humanity, and his value as a person, irrespective of the utility he can provide to others." (para 26).

From this notion of dignity, the court derives a concept of privacy that "...deals with persons and not places." (para 47). That is, the right to privacy is not merely the right to do what one wants in "private
spaces" like the home, but also a right to make choices about how to
live one's own life. Privacy protects personal autonomy.

This dignity-autonomy includes the right to sexual expression, which
necessarily entails being able to choose sexual partners without
unjustified interference by the state. The Justices elaborate on this
point by lengthily quoting the Constitutional Court of South Africa's
germinal opinion in The National Coalition of Gay and Lesbian Equality
v. The Minister of Justice:
"The privacy recognizes that we all have a right to a sphere of private intimacy and autonomy which allows us to establish and nurture human relationships without interference from the outside community. The way in which one gives expression
to one's sexuality is at the core of this area of private intimacy.

If, in expressing one's sexuality, one acts consensually and without harming the other, invasion of that precinct will be a breach of privacy." (para 40). "For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so
embedded in the individual that the individual carries this aspect of his or her identity wherever he or she goes. A person cannot leave behind his sense of gender or sexual orientation
at home. While recognizing the unique worth of each person, the Constitution does not presuppose that a holder of rights is as an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times. The expression of sexuality requires a partner, real or imagined. It is not for the state to choose or to arrange the choice of partner, but for the partners to choose themselves." (para 47).

Relying on several Supreme Court cases, the Justices locate the rights
to dignity and privacy within the right to life and liberty guaranteed by Article 21 of the Indian Constitution. This is because the right to life necessarily includes the right to define one's own life.

"In the Indian Constitution, the right to live with dignity and the right of privacy both are recognized as dimensions of Article 21. Section 377 IPC denies a person's dignity and
criminalizes his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person
a right to full personhood which is implicit in notion of life under Article 21 of the Constitution." (para 48).

Thus, the Court concludes that Section 377 violates the Constitution,
not only because it criminalizes acts taking place within a special zone
of privacy, but also because it criminalizes individual choices which
are central to personal dignity. The Court thereby concludes that
Section 377 violates the right of privacy which is both zonal and
decisional. The violation of this broadened notion of privacy infringes
human dignity.

The Court further cites several studies and reports to illustrate how
Section 377 violates the dignity of homosexuals even if it is not legally
enforced. This violation happens through the reduction in self-worth
that homosexuals felt, as well as through harassment from the police
and the community at large. The Court says:
"The criminalization of homosexuality condemns in
perpetuity a sizeable section of society and forces them to
live their lives in the shadow of harassment, exploitation,
humiliation, cruel and degrading treatment at the hands of
the law enforcement machinery." (para 52).

The Justices specifically reference the colonial-era Criminal Tribes Act, which criminalised hijra identity, as a particularly horrendous
instance of the criminalization of sexual minorities. Even without
actual enforcement, laws like Section 377 serve to stigmatize an entire
section of society, thereby violating their dignity as citizens.

(From The Right That Dares Speak Its Name, Alternative Law Forum, Bangalore, 2009)
Right to Health

The Justices in the Naz Foundation judgement note that the Supreme Court has read the right to life in
Article 21 of the Constitution to include a right to health. This right
to health includes various entitlements, such as an equal opportunity to access a functioning healthcare system.

The Justices point out that the International Covenant on Economic,
Social and Cultural Rights (ICESCR) provides that the right to health
is violated by discrimination based on sexual orientation or HIV status.
They then canvass in detail the policies of international and domestic
institutions involved in the struggle against HIV/AIDS, including
several important declarations by U.N. bodies. They further cite
statements by the Union Health Minister in 2008, saying that the stigma attached to sex workers and men who have sex with men by Section 377 presented a serious obstacle to HIV/AIDS prevention efforts.

In response to the Additional Solicitor General's argument that repeal
of Section 377 would lead to an increase in the spread of HIV, the
Justices issue a sharp rebuke, saying his argument "is completely
unfounded since it is based on incorrect and wrong notions" (para
72). They say that there is absolutely no scientific evidence demonstrating a link between the decriminalization of homosexuality and an increase in HIV transmission rates. In fact, the NACO affidavit indicates that decriminalization would have a positive effect on HIV prevention efforts. The Justices therefore conclude that Section 377 is an impediment to public health which particularly infringes on the
right to health of LGBT persons.
Safeguarding public health may indeed be a compelling state interest
that can justify reasonable limitation on the right to privacy. However,
the Court reasons, such an interest would in fact compel the state to
repeal Section 377, because Section 377 demonstrably hampers HIV/
AIDS prevention efforts.

From "The Right That Dares Speak Its Name", Alternative Law Forum, Bangalore, 2009

Bangalore
Once again it's not a great pleasure that we are here talking about our intimate sex lives. Nobody wants to do that, but the reason why the community is forced to come out here and talk about their sexual desires and sexual lives is because the law makes it their business to enter your private home and the realm of choice making. How is it the state's business to decide who I have an intimate relationship with? But it's the state's business under this law, which is framed in 1860. So that is the one core problem, which we all face. The movement, which has happened in the last decade or so, is that the Naz foundation has petitioned to the court challenging this particular law. It is before the Delhi high court and is now posted for decision and the challenge is precisely on constitutional grounds. The argument is clearly this: if the state does not see a problem with a man having a sexual relationship with a woman, why does the state have a problem with the sexual relationship that a woman has with a woman or a man with a man?
Second ground is the right to live with dignity. The fact that there is a law that criminalizes people for the choices they make while it is your fundamental right to live with dignity. It is your right to intimacy, it is your right to association, it's your right to live with dignity, which is being violated by this particular law.
And the third ground is expression – we all have the right to express ourselves, express our sexualities and who we are and that right is again violated by this 1860 law.
Of course society has changed dramatically in the last ten years as well. As you know, 377 is a metaphor for all that is wrong with the sexual universe which penalizes people for the choices they choose to make.
People's Panchayats on Resisting Stigma and Homophobia; Action Plus - a Coalition for Rights, Education and Care in HIV and AIDS. Arvind Narayan, an Expert at the Bangalore Panchayat, shares his reactions to the testimonials heard, as well as to the verdicts pronounced by the various religious leaders present. He also sheds light on the recent history of the gay rights movement in India, highlighting the legal aspects of the movement in particular. Mr. Narayan expounds on the Constitutional right to "Live with Dignity", and shares the ways in which Section 377 of the Indian Penal Code violates this right.
Arvind Narrain
action plus
aids
alternative law forum
amartya sen
bangalore
care
coalition
education
expert
hiv
homophobia
indian constitution
indian penal code
naz foundation
panchayat
people
resistance
right to live with dignity
rights
section 377
stigma
vikram seth

Bangalore
In the last ten years we have had a series of pride marches by the LGBT community in the major cities in this country – Delhi, Mumbai, Bangalore, and Kolkata. So in a sense a lot has changed in the last couple of years.
I think religious leaders play a very important role in shaping public opinion or the way people think or feel. It's really precious and valuable – the message of humanity that you have put across. I think what we are talking about is the right to dignity – no one is talking about sympathy – and that is fundamental. We're not about mental institutions, not about ok, we will tolerate them, and we're about how we need to give respect where respect is due and to give a sense of dignity. We have the right to dignity precisely because of what was articulated – that we need dignity.
People's Panchayats on Resisting Stigma and Homophobia; Action Plus - a Coalition for Rights, Education and Care in HIV and AIDS. Arvind Narayan, an Expert at the Bangalore Panchayat, shares his reactions to the testimonials heard, as well as to the verdicts pronounced by the various religious leaders present. He also sheds light on the recent history of the gay rights movement in India, highlighting the legal aspects of the movement in particular. Mr. Narrain expounds on the Constitutional right to "Live with Dignity", and shares the ways in which Section 377 of the Indian Penal Code violates this right.
action plus
aids
alternative law forum
amartya sen
arvind narayan
bangalore
care
coalition
education
expert
hiv
homophobia
indian constitution
indian penal code
naz foundation
panchayat
people
resistance
right to live with dignity
rights
section 377
stigma
vikram seth

action plus
aids
alternative law forum
amartya sen
arvind narayan
bangalore
care
coalition
education
expert
hiv
homophobia
indian constitution
indian penal code
naz foundation
panchayat
people
resistance
right to live with dignity
rights
section 377
stigma
vikram seth
Bangalore
People's Panchayats on Resisting Stigma and Homophobia; Action Plus - a Coalition for Rights, Education and Care in HIV and AIDS. Arvind Narayan, an Expert at the Bangalore Panchayat, shares his reactions to the testimonials heard, as well as to the verdicts pronounced by the various religious leaders present. He also sheds light on the recent history of the gay rights movement in India, highlighting the legal aspects of the movement in particular. Mr. Narayan expounds on the Constitutional right to "Live with Dignity", and shares the ways in which Section 377 of the Indian Penal Code violates this right.
The second point that I want to raise is the relationship of religion and sexuality. We have seen a lot of our friends suffer because they see a gap between their sexuality and their religion. What religion tells them is that sexuality is bad, it's unnatural and something, which is to be ashamed of. What they feel very deeply is that sexuality is an important part of who they are. What religious leaders can do is to address this conflict. If this debate goes out and we can have this message of humanity and faith which comes which is to say that regardless of which sexuality you are, you deserve complete and full respect as a human being. Because we've had friends who've been through not only torture but attempted suicide and a whole series of a range of problems precisely because of what they want to be. To put the onus back in the Panches court is how would you take this forward is what I would raise for you? How will you take this forward in the institutional structures of the church? We need a change in institutional policy, we need the church to think differently, we need the church and the other institutions to start treating lesbian, gay and bisexual, transgender people as human beings and I think that is the dramatic shift in opinions, which we need.

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