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377 arguments, 4 voices December 3, 2008

Posted by nitinkarani in English, Indian Express, Section 377.

From The Indian Express:

Vinay Sitapati Posted: Nov 23, 2008 at 0335 hrs IST

It makes no sense. Corporate lawyers in India are paid upward of Rs 12 lakh a year; American law salaries (even post-Lehman) are close to a crore. And these are just starting salaries. Why, then, should India’s brightest young lawyers—the world at their feet—be working at minimum wage, even free, arguing for the decriminalisation of homosexuality in India? It just makes no sense.The case itself is more straightforward. Section 377 of the Indian Penal Code, drafted in Victorian India, criminalises “carnal intercourse against the order of nature”. This has been interpreted to include sodomy, effectively criminalising homosexuality. A century-and-a-half later, the law is being challenged in the Delhi High Court. The petitioner, Naz Foundation, has challenged it on medical grounds, arguing that it prevents India’s 23 lakh gays, many of whom are at high risk from AIDS, from receiving treatment. The other group challenging the law, ‘Voices against 377’, relies more on human rights, contending that Section 377 violates the constitutional rights guaranteed to homosexuals. The court’s judgement is expected anytime now.

The jury might still be out, but there is no doubt who the better lawyers are. “You seem to have gathered much medical evidence that homosexuality is not a disease,” Chief Justice A.P. Shah told the petitioners while hearing the case, “unlike the (other side’s) lawyer, who argued in court that ‘homosexuality is a matter of fun’.”

This asymmetry in the legal arsenal is no coincidence. A team of highly educated young lawyers has committed its time to this case. These young lawyers, four of whom are profiled here, are only a small slice of India’s horde of activist lawyers, many of whom have fought for years against Section 377.

Even these four have disparate stories. One is a hard-nosed Supreme Court lawyer, driven to the case by the constitutional obviousness of the cause. The others are more activist: a gay lawyer who wants to help his community, a feminist driven by middle-class guilt and pleasure, and a small-town girl hoping to empower herself and the world around her. But what links these stories is that all four could be anywhere else, earning far more. The global options available only highlight the choice they have made. The socially conscious lawyers of the 1970s fought on passion and belief. Version 2.0’s passion is matched by rigorous legal skills. This is their story.



‘The argument for decriminalising homosexuality is a mainstream one’


When Vasuman Khandelwal was growing up, he had no idea what homosexuality meant. “The first time I was exposed to the idea was when I saw the Hollywood film Philadelphia (in which Tom Hanks plays a gay HIV victim).” But even then, he didn’t really understand. Then Vasuman went to law school in Bangalore, where Australian judge Michael Kirby came visiting. Justice Kirby is openly gay, and a gay advocate. “It set me thinking,” says Khandelwal, “since Justice Kirby was so brilliant, and so respectable, homosexuality couldn’t really be a perversion, could it?”

Khandelwal chose to study law at a time when the word “lawyer” conjured up images of sleazy black-suits shouting “Rs 300 for divorce” outside police stations. But when Khandelwal graduated from National Law School Bangalore, in 2004, and SOAS (London) in 2005, he had the pick of jobs to choose from. But this Delhi boy was always interested in the Indian Constitution, and the drama of the court room. “I always wanted to engage with Indian public institutions,” he says. It is this fascination for constitutional rights that drove Khandelwal to become a Supreme Court lawyer. It is this fascination that made him work on the 377 case, as junior to the eminent lawyer Shyam Divan. “The Constitution also protects homosexuals against discrimination,” he points out, “they deserve to live lives and build relationships—so essential to fulfilling life’s goals.”

Khandelwal is very much a mainstream lawyer, sharpening his legal skills working on corporate and tax matters in the Supreme Court. He rejects the “human rights” lawyer tag, terming it as “bad slotting”. “But the argument for decriminalising homosexuality,” he contends, “is very much a mainstream argument.” Is his family shocked that he is representing the gay community in court? “Not at all,” he says, “they understand that so much around them has changed; that gays have rights too.”



‘Why is it the state’s business to regulate love?‘


Having studied law at Columbia University. Mayur Suresh could be billing $250 an hour in lower Manhattan, or charging Rs 7,000 an hour in Nariman Point. Instead, he spends a typical day taking an auto to Delhi’s Tis Hazari, representing some of India’s most marginalised. Suresh is a lawyer for ‘Voices against 377’, a coalition of NGOs that is fighting to decriminalise homosexuality in the Delhi High Court. Hailing from a medical family in Bangalore, he graduated from National Law School Bangalore in 2004, and from Barack Obama’s alma mater in 2005. He is using this legal arsenal to work in Delhi as a litigator, and is currently combating what he terms “one of India’s most unjust laws”—Section 377, which holds homosexuality to be illegal in India. Suresh has a personal stake: he is homosexual. “There is a wider movement in the country fighting for the rights of the lesbians, gays, bisexuals and transgenders (LGBT). For the gay community, whose very identity is condemned as illegal, lawyers play an important role,” he says. “I’m only doing my bit.”

Suresh finds that his skills as a lawyer help him to “take a bunch of facts, cut out the faff, and present a legal argument that will stand scrutiny in court.” But he is also wary of how the legal story of homosexuality has cut out a large part of the human element. “We are able to make a medical argument and a human rights argument in favour of decriminalising homosexuality. But what about love? Why is it the state’s business to regulate love?”

Though Mayur has never personally faced police harassment or discrimination, he points out that many in the gay community experience everyday fear. As he puts it, “So many of my friends are blackmailed, beaten up, and abused.” Suresh’s identity as a homosexual also makes him identify with others who are marginalised: “slum dwellers, for example” or “others who face the brunt of state harassment”. “That’s why I became a human rights lawyer. My identity makes me empathise with others who face the brunt of state abuse.”

Suresh recently told his middle-class parents that he is gay. “I was initially scared of telling them,” he says, “because I’ve heard horror stories about how some parents react. But my parents were very supportive. I guess that’s what real love is all about.”



‘We’re not just activists. We are first and foremost lawyers‘


“After studying law, I spent five months in Gujarat, helping riot victims file FIRs,” says Shivangi Rai. “It was painful, but also empowering. People looked up to me and I felt responsible for them. I realised then that this is how I could empower myself, and those around me.”

Power is important to Rai. Growing up in Patna was “stifling for a woman, so patriarchal,” she says. “My parents and school were liberal islands in this stifling world. They showed me that another world was possible.” It was this belief in another world that took Shivangi to study law at Indian Law Society Pune, where she graduated in 2005. She initially trained in corporate law, as “corporate law can be really empowering for women; we can earn so much on our own. That money buys us freedom.” But post graduation, Gujarat changed that.

For the last three years, Shivangi has been working with the HIV-AIDS unit at the NGO Lawyer’s Collective in the areas of women’s rights, public health, and the rights of HIV-positive people. “HIV/AIDS affects the most marginalised: sex workers, drug users, and Men who have Sex with Men (MSM). We can use law as a tool to create a more enabling socio-legal environment.” As a lawyer for the petitioner Naz Foundation, she is fighting Section 377 in the Delhi High Court on the grounds that “Section 377 violates the fundamental right to privacy, right to dignity and right to health of homosexuals”.

Rai values her legal training. “We are not just activists; we are first and foremost lawyers,” Shivangi points out. “So we use our legal skills to make a persuasive case in court, not just shrill rhetoric.”

How does her family react to her human rights activism? “My family respects my work,” Rai replies. “But I know that my family would want me to get a job in a regular law firm, earn more money and settle down. It reflects the fact that our society measures success only with money, not by the quality of work one does.”



‘As a feminist, I understand the sheer wrongness of Section 377‘


As a child, Shrimoyee Nandini Ghosh, daughter of a senior MNC executive, remembers growing up in sheltered colonies. “But even then, I was driven by a sense of wrongness, that things were just ‘not fair’ in the world,” she says. She spent five years at National Law School Bangalore, where this inchoate sense of justice was politicised. “I was appalled that boys and girls were being treated differently, or that the university staff was illegally kept contractual.” She graduated in 2003 and did her Masters at Birkbeck College, University of London, graduating in 2006. “I was sure I would come back to India,” she says, “and work on women’s rights and human rights law.”

A practising lawyer in Delhi, she is associated with ‘Voices against 377’, fighting for decriminalising homosexuality. Why homosexuality? How does the case concern her? “I think that as a feminist, I understand the sheer wrongness of Section 377, and how it stigmatises an entire community. Discrimination on the basis of identity is something that feminists can easily relate to.” She also points out that “it’s not just about gay people—sexuality is everybody. Section 377 technically makes many heterosexual acts illegal as well—it’s just a violent, archaic, incoherent law that needs to go.”

Ghosh also works on cases involving domestic violence and manual scavenging (a petition on which is before the Supreme Court). Taking up such issues “allows me to have a direct conversation with the state. I can be in the thick of action,” she says. But she also finds the legal process limiting: “Its demands do not allow me to think in any depth about the issues.” So she also does legal research for many organisations—on state impunity, custodial torture, and livelihood issues arising out of the Supreme Court forest bench. She feels that her privileged position as an upper middle-class woman gives her the ability to make choices that aren’t available to everybody. “But, I’m no heroine,” she insists, “I’m doing this because it makes me happy, because it gives me satisfaction. Part of it is middle-class guilt of course, but part of it is sheer pleasure.”



1. DEEPIKA - December 24, 2008


2. qmediawatch - December 28, 2008

This comment has been left to showcase the kind of mindless hatred homosexuals are subject to. This site is about love and its many varieties and not about hatred.
When you create the world of your own free of homosexuals please let us know and we shall certainly stop existing there. Until then I am sorry to say that you really can’t do much about this except scream up some hate speech!

3. Suraj khandelwal - April 16, 2010

These guys are really doing a commendable job of working for the welfare of such a marginalised community suffering from hatred and disgust as evident from deepika’s comments. Being a gay i want people to live with us as much normally as they used to live with others.

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