In
July 2001, four staffers from a non-governmental organization in
Lucknow working to fight HIV/AIDS among men who have sex with men (MSM)
were arrested and charged with the stringent IPC Section 377 (unnatural
offences) and for sale obscene material among other offences. They were
jailed for 47 days, their HIV/AIDS- related material seized and the
offices of their NGOs Naz Foundation and Bharosa Trust sealed.
Health workers in Chennai, Bangalore and Delhi endured similar harassment, noted Human Rights Watch
in its publication "Epidemic of Abuse-Police Harassment of HIV/AIDS
outreach workers". The document highlights a bitter reality of India's
battle against HIV/AIDS—fighting the disease becomes an uphill task when
criminality is attached to vulnerable communities.
Much of these challenges associated with fighting HIV/AIDS were
overcome thanks to the Delhi High Court judgement decriminalising
same-sex relations in 2009. But they have been resurrected with the
Supreme Court's judgement on Wednesday. Activists fear the judgment will
pose a huge setback for HIV/AIDS.
"It will have a devastating
impact on the fight against HIV/AIDS. In the early days it was very hard
to get MSMs to health units as they feared police action. This changed
only after the Delhi HC judgement," says Dr. L Ramakrishnan of
Solidarity and Action Against the HIV Infection in India. He pointed out
that the apex court's judgement was likely to give legal backing to the
biases of healthcare professionals and could fuel their discriminatory
attitudes.
The issue is particularly pressing as MSMs are a
high-risk category for HIV/AIDS. Roughly seven per cent of the estimated
25 lakh gay persons in India are HIV-infected, according to the Central
government. Their marginalisation in healthcare was in fact the basis
of the Public Interest Litigation filed by the Naz Foundation in the
Delhi HC.
The National AIDS Control Organization too had admitted
in its affidavit that Section 377 acted as a "serious impediment" to
successful public health interventions. "Those in the high risk group
are mostly reluctant to reveal same-sex behaviour due to fear of law
enforcement agencies, keeping a large section invisible and unreachable
and thereby pushing the cases of infection underground making it very
difficult for public health workers to even access them," stated the
NACO affidavit. It had pointed out that social stigma forced many MSMs
to deny their behaviour, thereby marrying or having sex with female
partners and subsequently putting them too at the risk of HIV/AIDS.
Ashok Row Kavi of the Humsafar Trust too echoed these concerns. "It
will put us in grave trouble. But the NACO's progressive schemes have
helped the community and we will continue that work," he said.
The negative impact
* Gay persons would be afraid to approach healthcare systems as they could be reported under Section 377.
* The judgment would make healthcare workers who work with LGBTQ
(lesbians, gays, bisexuals, transgender, queer) communities vulnerable
to police harassment for 'promoting' illegality.
* Social stigma
could force MSMs to deny their sexual behaviour, marry women and have
sex with female partners putting them at the risk of HIV/AIDS.