Hey,Hey,Gay, Wadya Say: Sid Harth
bademiyansubhanallah
New Delhi (PTI): In a pathbreaking judgement, the Delhi High Court on
Thursday legalised gay sex among consenting adults holding that the
law making it a criminal offence violates fundamental rights.
However, Section 377 of the Indian Penal Code which criminalises
homosexuality, will continue for non-consensual and non-vaginal sex.
"We declare section 377 of IPC in so far as it criminalises consensual
sexual acts of adults in private is violative of Articles 14, 21 and
15 of the Constitution," a Bench comprising Chief Justice A.P. Shah
and Justice S. Murlidhar said.
The High Court said "the provision of Section 377 IPC will continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors".
The court clarified that "by adults we mean everyone who is 18 years
of age or above."
It further said that this judgement will hold till Parliament chooses
to amend the law.
"In our view Indian Constitutional Law does not permit the statutory
criminal law to be held captive by the popular misconception of who
the LGBTs (lesbian gay bisexual transgender) are.
"It cannot be forgotten that discrimination is antithesis of equality
and that it is the recognition of equality which will foster dignity
of every individual," the Bench said in its 105-page judgement.
The High Court, while allowing the PILs filed by an NGO, Naz
Foundation and others fighting for gay rights, clarified that "its
judgement will not result in the reopening of criminal cases involving
Section 377 of IPC that have already attained finality"
It observed that the inclusiveness that the Indian society
traditionally displayed in every aspect of life manifested in
recognising a role in society for everyone.
"Those perceived by the majority as 'deviants' or 'different' are not
on that score excluded or ostracised," the Chief Justice writing the
judgement for the Bench, said.
Where society can display inclusiveness and understanding, such
persons can be assured of a life of dignity and non-discrimination, it
said.
"This was the spirit behind the resolution of which Jawaharlal Nehru
spoke so passionately," the Bench said referring to the Objective
Resolution moved by him on December 13, 1946 at the Constituent
Assembly debate.
Quoting Nehru, Justice Shah said "words are magic things often enough,
even the magic of words sometimes cannot convey magic of human spirit
and of a nation's passion ...(this resolution seeks very feebly to
tell the world of what we have thought or dreamt of so long, and what
we now hope to achieve in near future)".
He said Nehru was of the view that the House should consider the
resolution not in a spirit of narrow legal wording, but rather look at
the spirit behind that resolution.
The Bench was critical of the provision of section 377 of IPC holding
that "a provision of law branding one section of people as criminal
based wholly on states' moral disapproval of that class goes counter
to equality guaranteed in the Constitution."
"The provision of section 377 runs counter to the Constitutional
values and the notion of human dignity which is considered to be
cornerstone of our Constitution.
"Section 377 in its application to sexual act of consenting adults in
privacy discriminates a section of people solely on the ground of
their sexual orientation which is analogous to prohibited grounds of
sex," the Bench said.
It said that any discrimination on the grounds of sexual orientation
was against Article 15 of the Constitution which prohibits any
discrimination on grounds of sex, religion, caste or place of birth.
"We hold that sexual orientation is a ground analogous to sex and that
discrimination on the basis of sexual orientation is not permitted by
Article 15".
The Bench pulled up the government for its stand that judiciary should
refrain from interfering on the issue as it pertains to legislative
function coming under the ambit of Parliament.
"We are constrained to observe that the submission of Additional
Solicitor General reflect rather poorly on his understanding of the
Constitutional scheme.
"The judiciary is constituted as the ultimate interpretor of the
Constitution and to it is assigned the delicate task of determining
what is the extent and scope of the power conferred on each branch of
government," the Bench said.
"A Constitutional provision must be construed, not in a narrow and
constricted sense, but in a wide and liberal manner so as to
anticipate and take it out of changing conditions and purposes so that
the Constitutional provision does not get atrophied or fossilised but
remains flexible enough to meet the newly emerging problem," the Bench
said quoting a Supreme Court judgement.
The High Court judgement assumes importance as the Government was
still grappling with the option to scrap section 377 from the
statute.
When the verdict was reserved on November 7 last, the previous UPA
government had vociferously opposed scrapping of section 377 of the
Indian Penal Code which prescribes punishment upto life imprisonment
for indulging in unnatural sexual acts.
There were contradictions within the Government as the Home Ministry
had opposed scrapping of section 377 while Ministry of Health came out
openly in support of the gay rights activists.
The Government later sidelined the stand of the then Health Minister
Ambumani Ramadoss and opposed the PIL by describing homosexuality as
"the most indecent behaviour" in society.
The Centre had submitted that gay sex is immoral and reflection of a
perverse mind and its decriminalisation would lead to moral
degradation of society.
"Every citizen has the right to lead a decent and moral life in
society and the right would be violated if such behaviour (gay sex) is
legalised in the country," the government had contended and added that
allowing gay sex would pose a health hazard to society.
The Centre had said that homosexuals comprise only 0.3 per cent of the
population and the right of rest 99.7 per cent of the population to
lead a decent and moral life in society would be violated if such
behaviour (gay sex) is legalised.
The gay rights activists had contended that the government is
infringing upon their fundamental right to equality by criminalising
homosexual acts on the ground of morality.
"The Constitution gives fundamental right to equality and it prohibits
discrimination on the basis of sex. But the rights of 25 lakh
homosexuals in the country are being violated," they had contended.
Earlier, the government had put a contradictory stand on the issue
with the Home Minister of the then UPA government favouring the
retention of the penal provision for homosexual acts while the Health
Minister opposed the enforcement of Section 377 in cases involving
consenting adults.
But when the day-to-day hearing began on the case, the government set
aside the stand of the Health Ministry and opposed the plea of gay
rights activists.
Delhi High Court strikes down Section 377 of IPC
Nirnimesh Kumar
Section criminalises consensual sexual acts of adults in private
LANDMARK JUDGMENT: Activists and supporters celebrate the Delhi High
Court verdict decriminalising gay sex, in New Delhi on Thursday.
NEW DELHI: In a landmark judgment, the Delhi High Court on Thursday
struck down the provision of Section 377 of the Indian Penal Code
which criminalised consensual sexual acts of adults in private,
holding that it violated the fundamental right of life and liberty and
the right to equality as guaranteed in the Constitution.
Gays present in the court room hailed the judgment and greeted one
another with hugs.
A Division Bench of Justice A.P. Shah and Justice S. Muralidhar in its
105-page order said: “We declare that Section 377 of the IPC, insofar
as it criminalises consensual sexual acts of adults in private, is
violative of Articles 21 [Right to Protection of Life and Personal
Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of
Discrimination on Grounds of Religion, Race, Caste, Sex or Place of
Birth] of the Constitution.
“We hold that sexual orientation is a ground analogous to sex, and
that discrimination on sexual orientation is not permitted under
Article 15,” the judgment said.
However, the court clarified that “the provisions of Section 377 will
continue to govern non-consensual penile non-vaginal sex and penile
non-vaginal sex involving minors.”
The judges also said that by adult they meant “everyone who is 18
years of age and above.”
“A person below 18 would be presumed not to be able to consent to a
sexual act,” the judgment said.
The Bench further said that “this clarification will hold till, of
course, Parliament chooses to amend the law to effectuate the
recommendation of the Law Commission of India in its 172nd Report
which, we believe, removes a great deal of confusion.”
The judgment also made it clear that it would not result in re-opening
of criminal cases involving Section 377 that had already attained
finality.
The verdict came on a PIL plea by Delhi-based non-government
organisation Naz Foundation that the Section 377 provision
criminalising sexual acts between consenting adults in private
violated Articles 14, 15, 19 and 21 of the Constitution. The
Foundation works among sex workers in Delhi.
US gay activists welcome Delhi HC decision as "historic"
Washington (PTI) Indian American gay and lesbian activists on Friday
termed the Delhi High Court's decision which decriminalised
homosexuality as "historic first" in their effort to fight for their
rights in India.
"It is the culmination of eight years of struggle. A lot of work has
gone into it," said South Asian historian and gay rights activist,
Mario D'Penhna, as Indian Americans gathered to celebrate the occasion
in Manhattan on Friday.
"This is an historic first, but yet not the end," D'Penhna said.
"This decision comes at an opportune time when South Asian queer
leaders around the world are focused on engaging the larger community
to create dialogue about issues of same-sex marriage and immigration
policy," says Myna Mukherjee, executive director of Engendered, a New
York-based trans-national arts and human rights organization.
"I would like to heartily congratulate the thousands of gay rights
activists in India who have been fighting the big fight on the ground
by filing petition after petition to win this battle for their freedom
and equality," she said.
The Delhi High court ruled that Section 377, as it criminalizes gay
sex among consenting adults, is a violation of fundamental rights.
Opinion - Editorials
Don’t dither on Section 377
Are the winds of change that seemed to be blowing through the
corridors of the central government on the issue of ending legal
discrimination against gay sex petering out? Hope that the infamous
Section 377 of the Indian Penal Code would be either quickly repealed
or suitably amended — raised when the Union Home Ministry boldly
described it as an “absurdity in the present day” — have receded with
the Law Minister, Veerappa Moily, announcing that the Centre was in no
hurry to take such a step. Calls for a parliamentary debate to reach a
‘wider consensus’ on a basic issue of human rights and equal justice
are nothing but an excuse to put off a hard decision on ending an
obnoxious colonial-era provision that has absolutely no place in the
statute book of a modern democratic and secular state. Section 377,
which punishes “carnal intercourse against the order of nature” with
imprisonment up to 10 years, is not specifically targeted at
homosexuality. But by criminalising any penetrative sex that does not
lead to reproduction, it has become a weapon in the hands of the
police to harass those who have alternative sexual orientations. It
also stands out as a symbol of 19th century intolerance.
Suggestions that Section 377 would be reviewed coincided with hundreds
of members of the LGBT (lesbian, gay, bisexual, transgendered)
community dancing and marching through the streets of five Indian
cities last Sunday to mark the 40th anniversary of the Stonewall
uprisings in New York, now a universal symbol of gay resistance to
obscurantist oppression. What is clear is that the gay rights movement
is slowly coming of age in India — emboldened by such developments as
President Barack Obama’s promise to bring the “full spectrum of equal
rights to LGBT Americans” and his administration’s decision to endorse
a United Nations resolution calling for the worldwide
decriminalisation of homosexuality. In an age where there is growing
acceptance of the idea that LGBTs must be allowed to live in dignity
and respect, it is shame that India cannot bring itself to legalise
gay behaviour. It is time the United Progressive Alliance did the
right thing by either repealing Section 377 or (as some social
activists have proposed) amending it so that it excludes consensual
sex between all adults, whether of the same sex or otherwise. Having
promised to review this provision, the government must not give in to
the pressure of religious fundamentalists, moral obscurantists, and
others who argue that Indian society is not ready to accept such
change. Especially on non-negotiable social issues, governments must
lead public opinion — not tail its least enlightened strands or go for
the lowest common denominator.
Opinion - Letters to the Editor
Section 377
Practices considered illegal under Section 377 of the Indian Penal
Code — which criminalises homosexuality — are, by and large,
expressions of changing trends of human behaviour. As the group
expressing these trends is in a minority, it is regarded abnormal.
Sexual preferences are determined by hormones and they cannot be
regulated by law. That a debate on the issue has been set in motion is
heartening.
Amaninder Pal Sharma,
Ludhiana
* * *
Taking a different view from that of his predecessor, Anbumani
Ramadoss, Ghulam Nabi Azad is reported to have called for a wider
debate on amending Section 377. Homosexuals form a microscopic
minority. Their practices are against the nature and culture.
Sravana Ramachandran,
Udhagamandalam
* * *
The repeal of Section 377 will only lead to an increase in
homosexuality. Children who work for daily bread — not a negligible
number despite the ban on child labour — can be subjected to
harassment because of the abuse of the freedom gained, in the absence
of a law restricting it. It is better to think twice before setting
the genie free.
K.C. Joseph,
Thiruvananthapuram
Judgment on Section 377 welcomed
Aarti Dhar
— Photo: AFP
Activists in Kolkata celebrate the New Delhi High Court ruling
decriminalising gay sex on Thursday.
NEW DELHI: Describing Thursday as an “exciting” day for people with
different sexual preferences, Voices Against 377 and Naz Foundation
(India) Trust have welcomed the Delhi High Court judgment that said
making gay sex among consenting adults a criminal offence violated
fundamental rights.
Addressing a news conference soon after the judgment, representatives
of the two organisations that had filed the public interest litigation
petition told journalists that the regressive law had been used to
criminalise homosexual and transgender people in India.
With this judgment, the court has made a long overdue, strong
statement affirming the rights of all citizens of the country,
irrespective of their sexual and gender orientation, they said.
Anjali Gopalan of the Naz Foundation said when they started the
movement against Section 377 eight years ago, they did not receive
much support, but people joined hands in course of time. “We now feel
there is a change happening which also reflects in the attitude of the
people. This [judgment] is the first major step towards equality but
we have many more battles ahead,” she said.
The law, enacted by the British in 1860, continued to exist in the law
books of independent India long after it was removed from those of
England.
“This law has caused the blackmail, harassment, fear and death of many
lesbian, gay, bisexual and transgender (LGBT) people in India. The
judgment that decriminalises adult consensual same-sex sexual activity
is one of the positive steps that have been taken towards affirming
the rights of LGBT persons in India,” Ms. Gopalan said.
Anand Grover of Voices Against 377 – a coalition of groups and
individuals working on a wide range of issues, including same sex
desiring and transgender people – said the judgment was a crucial step
in the struggle towards affirming the rights of all citizens and hoped
that it would be aptly executed with the support of the government,
police departments and other courts.
“We commend this victory for freedom, dignity, respect and rights of
all human beings. This historic judgment is just the beginning, and
the struggle for rights will continue,” he said.
“Dignity restored”
The UNAIDS has also welcomed the “historic” decision by the Delhi High
Court to annul the discriminatory law.
“The Delhi High Court has restored the dignity and human rights of
millions of men who have sex with men and transgendered people in
India,” said UNAIDS executive director, Michel Sidibe.
“Oppressive laws such as Section 377 drive people underground making
it much harder to reach them with HIV-prevention treatment and care
services,” he added.
“It [the court decision] sends a positive message to countries, where
such laws still exist,” he said.
We need to examine details of the verdict, says Moily
Aarti Dhar
NEW DELHI: The government on Thursday refused to react to the Delhi
High Court judgement that legalised homosexuality. The only comment
came from the Union Law Minister M. Veerappa Moily who said the
government would examine the Delhi High Court judgment in detail.
“We need to examine the details of the judgment. Let me examine it,”
Mr. Moily told the reporters here.
Union Minister for Home Affairs P. Chidambaram and Information and
Broadcasting Minister Ambika Soni also declined to comment saying that
the matter did not come up for discussion in the Union Cabinet
meeting.
BJP yet to decide
Bharatiya Janata Party (BJP) leader Murli Manohar Joshi suggested he
was not too happy with the judgement, while Deputy Leader of
Opposition in the Lok Sabha Sushma Swaraj said the party had not taken
any view on it.
...and I am Sid Harth
bademiyansubhanallah
Vineeta PandeyFriday, August 8, 2008 16:35 IST Email
NEW DELHI: Gay and homosexual rights activists have found a supporter
in health minister Anbumani Ramadoss. He is going to push for radical
changes in the Indian law that are discriminatory and lead to
harassment of people with alternative sexual preferences.
According to Ramadoss, the "discriminatory" law -- section 377 of the
Indian Penal Code -- needs to be repealed. Speaking at the
international conference on Aids in Mexico City, Ramadoss said:
"Structural discrimination against those who are vulnerable to HIV
such as sex workers and men having sex with men (MSM) must be removed
if our prevention, care and treatment programs are to succeed. Section
377 of the IPC, which criminalises men who have sex with men, must
go."
Section 377 criminalises any penetrative sex that does not lead to
reproduction, thereby criminalising sexual expression by homosexuals,
bisexuals and transsexuals. According to civil rights activists, even
though this section does not lead often to filing of court cases
against sexuality minorities, it becomes a powerful weapon in the
hands of police and rowdies to harass, abuse, extort and torture
sexual minorities routinely. There is a strong demand to remove such
discriminatory sections in the law and even the Law Commission of
India in its 172nd report (on reviewing rape laws) has recommended the
repeal of IPC 377.
A petition challenging arrests under the act is pending in the Delhi
high court. Terming
the matter to be "serious", the court had earlier asked the government
to sort out the matter at the earliest.
Despite recommendations by the health ministry and the Law Commission,
the home ministry, the main custodian of the law, is not in favour of
changing the law. The home ministry argues that since homosexuality
was not accepted by Indian society, it is not possible to legalise it,
an argument that has outraged not only the homosexual community but
many who believe the state should keep out of the bedroom. According
to the home ministry, Indian society is "intolerant" towards
homosexuality and repealing the law would "open the floodgates of
delinquent behaviour". It says that this was the only law against
child abuse and male rape.
In his speech at the global Aids summit, Ramadoss said: "Structural
discrimination against those who are vulnerable to HIV such as sex
workers and men having sex with men must be removed if our prevention,
care and treatment programmes are to succeed. The key to overcoming
the HIV epidemic is to take HIV services to those on the margins of
society and we can only do that in an enabling environment."
The health ministry is also bringing a law to stop discrimination
against HIV patients.
India has about 2.5 million HIV infections and many states have
started recording a stabilisation of the epidemic. However, hotspots
of HIV infection are emerging in northern India, particularly in the
rural interiors, which are home to thousands of migrants who work
outside their states in India's economic hubs like Mumbai and Surat.
The law
Section 377-IPC (Unnatural offences): Whoever voluntarily has carnal
intercourse against the order of nature with any man, woman or animal,
shall be punished with [imprisonment for life], or with imprisonment
of either description for term which may extend to ten years, and
shall also be liable to fine. Penetration is sufficient to constitute
the carnal intercourse necessary to the offence described in this
section. Voluntary sex against the order of nature is punishable with
imprisonment for life or up to 10 years.
Allow gay partnerships, if not gay marriages
Niyati Rana / DNAFriday, July 3, 2009 8:28 IST Email
Text
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Ahmedabad: After the Delhi high court decriminalised section 377 of
the Indian Penal Code and, thereby, legalised gay sex among consenting
adults, the gay community in Gujarat is happy. It sees the judgment as
a 'historic' one, and is already optimistic that 'gay partnerships',
if not 'gay marriages', will soon become a reality in India.
--------------------------------------------------------------------------------
You may also want to see
Chidambaram, Azad, Moily meet to discuss Section 377
From now it's all same, right to love and declare
'Queer Independence'
'Last yoke of colonialism has now been set free'
Homosexuals can now hope for better healthcare
Related videos
Mixed reactions on gay sex verdict
Bollywood supports gay rights: Celina Jaitley
However, despite the pro-gay court order of Thursday, most homosexuals
believe that till such time as gay partnerships are accepted by Indian
society as normal, homosexuals will have to continue their fight for
equal treatment. For now, however, they are happy that homosexuals can
stay together without fear of the law.
Sylvester, a gay rights activist from Vadodara, said, "Seeking legal
recognition for homosexuals as partners should be the next step. In a
patriarchal society like ours, it would be difficult to allow gay
weddings, but they can, at least, be allowed to live together." He
agreed that gay marriages would not be easy to handle even for
homosexuals.
"I live in India," said Sylvester. "I have a career here and don't
want to leave the country. I pay taxes like any other citizen and,
thereby, contribute to the country's economy. I see the homosexuals'
right to live together as a human right." He said the issue has been
discussed umpteen times during the meetings of Lakshya, an NGO that
works for gay rights, but without any fruitful results.
However, homosexuals are happy that the judgment will bring an end to
police harassment. It will be much easier to distribute condoms among
gay men and for homosexual men to seek anal checkups. Maya Sharma,
founder of Parma, a lesbian support group in Vadodara, believes that
patriarchal control over marriage creates inequality. She also said
that inclusion of a queer (gay) perspective calls for restructuring
(of societal norms and legality). "Instead of seeking permits for
homosexual marriages, we should fight for homosexual partnerships,"
she said.
Chidambaram, Azad, Moily meet to discuss Section 377
PTIFriday, July 3, 2009 19:27 IST Email
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New Delhi: Union home minister P Chidambaram and his cabinet
colleagues, law minister Veerappa Moily and health minister Ghulam
Nabi Azad, today held a meeting to analyse the Delhi High Court
judgment decriminalising same-gender sex.
--------------------------------------------------------------------------------
In what is considered a victory for gay rights, the Delhi High Court
on Thursday legalised homosexual acts among consenting adults, holding
that the 149-year-old law making it a criminal offence violated
fundamental rights.
The government had yesterday adopted a cautious approach and avoided
any direct reply on what its next move would be following the
judgment. "We need to examine the details of the judgment. Let me
examine it," Moily had said when asked about the
government's move following the verdict.
From now it's all same, right to love and declare
Sudipa Chakraborty / DNAFriday, July 3, 2009 10:20 IST Email
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Bangalore: Amidst the gaze of scores of onlookers, Swathi pecked on
Snehaprabha's cheeks declaring her love for her partner. After a
decade-long fight for their rights, homosexuals have finally got their
freedom to love and declare it in the open.
--------------------------------------------------------------------------------
You may also want to see
Chidambaram, Azad, Moily meet to discuss Section 377
Bollywood supports gay rights: Celina Jaitley
Reacting to the unprecedented decision of the Delhi High Court, around
150 members and supporters of sexual minority groups of Bangalore
gathered at the Theological College on Thursday. For them, it was a
celebration of love and freedom.
"This kiss is a reassertion of my love for my partner," said Swathi.
She added, "We have been together for three years now. But, we never
had the right to declare our love openly." LESBIT groups, including
gay communities and members of Sangama, Samara, Sadhana, Good As You
(GAY) and other sexual minority groups, joined together to celebrate
the Delhi Court judgement.
Regibald Watts, former director of Sangama "was initially shocked with
the judgement. From being shocked to overjoyed, it took us a while to
believe what we heard it. But, now, we will celebrate". Rex has been
fighting for decriminalisation of Section 377 for more than ten years
now.
Shubha Chacko, another activist said, "It is the first step towards
achieving various other rights for them."Siddharth Narain from
Alternative Law Forum added, "It is a fantastic judgement recognising
both right to equality and liberty."
So, are they prepared for opposition from various quarters to this
judgement?
Lawyer and activist BT Venkatesh said, "The fight will go on. If
anybody files a case in any other High Court of any state, we are
ready to approach the Supreme Court."
The mood was upbeat. Every dance move on the stage announced their
triumph. Even when some danced, there were some who quietly pronounced
their love with a song Ishq ka jadoo sar chad ke bola, khub lagalo
pehre raste rab khole... "Yes, we can talk about being in love
bademiyansubhanallah
'Last yoke of colonialism has now been set free'
Anand Grover, the lawyer who argued the case for Naz Foundation
seeking decriminalisation of homosexual sex before the Delhi
HighCourt, is missing the euphoria of his victory. Moonlighting as
United Nations Special Rapporteur on Health, Grover is currently in
Genevafor a UN convention. He spoke to Anshika Misra on the phone:
--------------------------------------------------------------------------------
What is your reaction to the Delhi High Court judgment?
This is a historic event because the last yoke of colonialism has been
set free. India was where the British saturised anti-sodomy laws and
then replicated it across the Commonwealth. Several Commonwealth
countries, which still outlaw homosexual sex, can use this judgment as
a precedent to change the law and make the society more inclusive.
What is the most significant aspect of the judgment?
The most significant aspect of the Delhi HC judgment is that it has
widened the scope of Article 15 of the Constitution that prohibits
discrimination on grounds of sex, religion, caste, creed or place of
birth. The HC has held that sex does not only mean gender but also
includes sexual orientation. Thus no person can be discriminated
against on grounds of his/her sexual orientation. This will have far-
reaching impact on rights of homosexuals. They can now argue other
issues of equality. This is only the beginning.
What is the applicability of the judgment?
Technically, the Delhi HC judgment is applicable only in the territory
of Delhi. Law and order is a state subject and only the Delhi
government, which was a respondent in this case, is bound by the Delhi
HC order. The other states were not party to the case. However, the
judgment has immense persuasive value. It can be cited in courts
across the country to seek relief. Also, if the government decides to
challenge the order in the Supreme Court then the apex court's ruling
will be the law of the country.
bademiyansubhanallah
Labonita GhoshMonday, April 3, 2006 0:27 IST Email
MUMBAI: Today will be a big day for the gay, lesbian, bisexual and
transgender (GLBT) community in India. A petition, filed by the Naz
Foundation seeking a reading down of Section 377 of the Indian Penal
Code, will finally be heard by the Delhi High Court.
The petition, filed in 2001, was thrown out of the high court two
years later, on the grounds that Naz had no locus standi to file it.
Following an appeal, the Supreme Court directed the High Court to hear
the case again, which will begin today.
"The very fact that the Supreme Court has referred it back to them
sends out a message that the petition has to be taken seriously," says
Anjali Gopalan of Naz. The much-talked about 377 refers to that
section of the IPC which deems sodomy and all other non-procreative
sex as "against the order of nature" and therefore punishable by law.
In recent times, this section has been largely used to harass and
censure the queer community.
But heterosexual couples should realise that they are equally liable
to punishment under this section, especially if they indulge in any
kind of non-procreative sex.
"This is not just a law looking at gay people," says Pramada Menon of
the organisation Voices Against 377. "It is a clear violation of all
people's rights, and a violation of the Constitution." Rather than
seek a direct repeal of the Act, Naz wants the high court to
decriminalise consensual adult sex and keep it out of the purview of
377. Doing away with it is not an option until there is a separate law
on child sexual abuse, which is punishable under 377 as well at the
moment.
The verdict, however, could go any which way. "There's always a fifty
per cent chance that on the final hearing, the court may throw the
case out again," says Anand Grover of Lawyer's Collective, which is
representing Naz. "The matter never went on merit the last time. This
time it will have to be heard on what the challenges to the
Constitution are, on equality, privacy, discrimination and such."
Supporters of the petition ----- including child rights activists and
groups working with HIV/AIDS ----- are set for battle, should there be
an unfavourable ruling.
bademiyansubhanallah
Javed M Ansari & Vineeta Pandey / DNATuesday, June 30, 2009 2:52 IST
New Delhi: Announce in haste and recant at leisure. The UPA
Government's penchant for making grandiose announcements without doing
the necessary groundwork is beginning to rebound on its ministers.
First it was HRD minister Kapil Sibal who drew flak and now it's the
turn of the new Union law minister Veerappa Moily.
--------------------------------------------------------------------------------
His plans to amend laws that penalise homosexuality have roused the
ire of religious groups, forcing the government and the party to
backtrack.
"This is an issue that needs to be debated widely. We will consult
religious groups before reviewing the law. Nothing will be done in a
hurry," Moily said.
Union health minister Ghulam Nabi Azad said, "There is a need for more
debate inside and outside Parliament and consensus on the issue."
Congress spokesman Shakeel Ahmad said, "We'll take a view once
consultation is over."
A number of religious outfits reacted in anger to Moily's promise of
repealing the law, saying it amounted to sanctifying unnatural sex.
"Homosexuality is an offence under Shariat and haraam in Islam. The
government should not repeal or tamper with Section 377," Maulana
Abdul Khalik Madarsi, deputy vice chancellor, Darul Uloom Deoband,
said.
Articulating the Catholic viewpoint, father Babu Joseph said, "It is
not a natural form of communion and not in the natural order of
things. Decriminalising such an act would amount to encouraging such a
communion".
The VHP was more vehement in its criticism, saying "homosexuality was
against Indian culture and will result in the outbreak of all kinds of
diseases". Significantly, the RSS was muted in its response. "The
government's priorities are wrong. Instead of tackling poverty, they
are concentrating on such issues," an RSS functionary said.
Incidentally, the 15th Law Commission, headed by former SC judge BP
Jeevan Reddy, while in its 172nd report on review of rape laws had
recommended that no sexual intercourse between adults, whether
heterosexual or otherwise, should be penalised unless it was non-
consensual. It even recommended deleting of Section 377 as
homosexuality could not be treated as an offence.
bademiyansubhanallah
Gays could make a vote bank
4 Jul 2009, 1037 hrs IST, TNN
Imagine this: While launching the election campaign, Sonia Gandhi or L
K Advani issues an open letter to the gay community in India promising
not Gay activists celebrate the Delhi High Court ruling
decriminalising gay sex, in New Delhi. (AFP Photo)
just decriminalization, but also recognition of partnerships, equality
in getting spousal benefits, and adoption rights.
Impossible, you might say. But if you were to look at it closely, such
an open letter could well be based on hard-nosed political
consideration. Going by estimates in other parts of the world, gays in
the country could be anywhere between 2% and 13% of the total
population, which works out 20 million to 130 million.
Christians account for a little over 2% of India’s population, while
Muslims make up roughly 13% — both significant enough groups to
attract the special attention of the political class. Even if a
conservative figure of 5% were to be assumed as Indian’s gay
population, why wouldn’t shrewd politicians consider them as a vote
bank, now that homosexuality has been decriminalised (unless of course
they are scared of alienating the anti-gay lobby)? The added advantage
here is that gays, unlike other communities, are a 100% adult
population. In short, all of them have voting rights.
And yet, political parties get the chills at the mere thought of
identifying with homosexual rights. But not so in countries with a
long history of struggle for LGBT rights. Barak Obama wrote an open
letter on February 28, 2008 to the LGBT (lesbian, gay, bisexual and
transgender) community, promising he would use his influence to push
states to recognize same sex marriages, among other gay-friendly
actions. Obama was in a close fight with Hillary Clinton for the
Democratic nomination. So, despite personal reservations, he took a
pro-gay position hoping to woo a huge vote bank of anything between 6
to 35 million people. He ended up rallying massive support from the
homosexual community.
In Europe, sensitivity to rights of sexual minorities is well
developed in most countries except the eastern ones. Spain will be
going to polls in September, and the ruling Socialist Party has
promised to legalise same sex marriages if re-elected. In Germany,
Angela Merkel’s Christian Democratic Union, an otherwise rightwing
party, too adopts a tolerant approach towards LGBT rights, while the
Social Democrats promise legalized civil unions. Elections are coming
up in autumn this year.
Thanks to the clout acquired by sexual minorities in various
countries, Europe has some of the most progressive laws in relation to
them: 5 countries have legal same-sex marriages and 19 others have
recognized civil unions between members of same sex.
Opinion polls clearly show that treating the LGBT community as a vote
bank is not merely because of their own numbers. It is because of a
much wider support that they get from society at large. A
Eurobarometer poll in 2006 showed that in eight countries, more than
50% supported same-sex marriages. An Observer poll in 2008 showed that
over 55% Britons support gay marriages while in France, 62% people
support gay marriages according to an Angus Reid poll. In the cut-
throat politics of Europe, there is a race among competing political
parties to garner LGBT support.
Significantly, most countries with predominantly Christian
populations, including Europe, have not only legalised homosexuality
but gone beyond.
The Indian gay-lesbian community has still a long way to go. But if
any lessons can be learnt from the West, building public opinion in
their support will galvanise the political class like nothing else.
bademiyansubhanallah
First Posted: 07- 8-09 03:25 PM | Updated: 07- 8-09 03:32 PM
By Varun Bubber
It's been less than a week since the Delhi High Court abolished
Section 377 of India's Penal Code, decriminalizing consensual sexual
intercourse between homosexuals. Ever since, the historic verdict has
created waves in Indian society, invoking joy and relief among the
nation's embattled gay community and its supporters, and outrage from
several sections, including religious and moral leaders, as well as
some politicians.
Yoga a Cure for Homosexuality?
Most recently, an influential yoga guru, Baba Ramdev, has filed a
petition in India's Supreme Court demanding that High Court's verdict
be struck down, claiming that "homosexuality is a disease that is
curable" and that [the] "right to privacy as a facet of right to life
cannot include the right to enjoy deviant sexual preferences and
sexual behaviour."
An ardent proponent of ancient Hindu techniques like yoga and herbal
medicine, Baba Ramdev commands a massive following in India, claiming
over 2 million followers (including several key politicians and
celebrities) and presiding over televised "yoga camps" that attract
over 20,000 participants and millions of viewers. The West's recent
interest in yoga notwithstanding, Baba Ramdev is widely credited with
reviving the practice of yoga in a nation that is growing increasingly
apathetic towards ancient traditions.
Religious Rage
The Baba's legal move comes after religious leaders from several
faiths condemned the High Court's decision in the media, with the
Catholic Church being particularly vocal in its dissent.
Story continues below
Joseph Dias, general secretary of the Catholic Secular Forum (CSF),
said recently that Indian Christians were in "greater danger" of being
lured by the "glamour of the gay world" and were in "imminent risk of
getting drawn into vice and sin, as homosexuality is forbidden by the
Church." He called for the Central Government to appeal in India's
Supreme Court, echoing demands by the leading Islamic organizations in
India.
Politically Correct
And while the bulk of India's political establishment has remained
guarded in its reaction to the verdict, the notoriously outspoken
Member of Parliament and Ex-Railway Minister Lalu Prasad Yadav, has
demanded that the central government appeal the judgement in the
Supreme Court, saying that "some people may like or consent to these
things, but these things are not acceptable in our society" and
"[homosexuality is] a crime... Such obscene acts should not be allowed
in our country. The society is adversely affected." Yadav has also
threatened to raise the matter in India's Parliament, which may force
the government to take a stand.
A Queer Future
The Delhi High Court, however, seems to have anticipated such morality-
based appeals, and the judgement appears to pre-emptively counter
them. "Moral indignation, howsoever strong, is not a valid basis for
overriding individuals' fundamental rights of dignity and privacy. In
our scheme of things Constitutional morality must outweigh the
argument of public morality, even if it be the majoritarian view,"
wrote the two-judge panel of Chief Justice Ajit Prakash Shah and
Justice S Muralidhar. So for now at least, the striking down of
Section 377, this first, crucial step in the gay rights movement in
India, remains safe, buffered against the storm of public outrage that
is coming its way.
bademiyansubhanallah
Bhopal: The All-India Muslim Personal Law Board (AIMPLB) on Wednesday
termed the Delhi High Court’s verdict decriminalising homosexual acts
among consenting adults as “illegal, irreligious and unnatural” for
the society.
AIMPLB president Maulana Rabe Hasani Nadvi said here that the court’s
decision was in favour of only a very small gay community.
Maulana Nadvi said the court decision should be “condemned” as it was
“irreligious and unnatural” and added “we would not allow the western
culture to be imposed upon the innocent Indian society.”
He said few western countries were trying for the last many years to
make homosexuality legal among their people and the decision will give
strength to the gay community and will have a bad impact on our
society. “If legalised, these acts, which are contrary to religion,
nature, morality and habits, will poison the Indian society,” he said.
The Maulana claimed homosexuality was never accepted in the human
history as it was “thought of as an extremely evil and criminal act”.
-- PTI
bademiyansubhanallah
Posted: Saturday , Jul 11, 2009 at 1003 hrs
BJP and HindutvaDo we follow the law ?Give this a thoughtRailway
budget
RSS ideologue K N Govindacharya has said there was no need to give a
legal sanction to homosexuality, as the phenomenon has always existed
in the society. “India has always lived with it (homosexuality). It
had neither sanctioned nor promoted it. No legal sanction was
required,” he said.
Regarding the BJP’s defeat in the Lok Sabha election, Govindacharya
said the BJP’s lack of commitment — both during its tenure and also
while in Opposition — led to its defeat. “Deviation from the concept
of ekatm manavvaad was visible during this period. In Rajasthan, the
number of liquor vends were increased from 600 to 3,400. Meat export
rose manifold during the NDA regime. There was major tampering with
the flow of the Ganges. This is not what Pandit Deendayal Upadhyay
stood for. In the same series was the issue of the Ram temple,” he
said during an interaction with mediapersons here on Friday. Talking
about the Lok Sabha election, he said the people have rejected
opportunistic alliances.
bademiyansubhanallah
- The Paris gay pride parade and the court ruling on Section 377
The Thin Edge - Ruchir Joshi
I have never been to the Kumbh Mela, but I have been in massed crowds
both in India and abroad. There was the huge anti-nuke rally in New
York, many years ago, there is the unbelievable crush of the Notting
Hill Carnival in London every year and, as recently described in this
column, there was the Baishakhi Mela in Brick Lane with its hundreds
of thousands of people. This crowd was different. A swelteringly hot
June Sunday in Paris and the huge roundabout of Place de la Bastille
was packed: it was the last major monument the gay pride parade would
pass before dispersing.
Me and my friends secured a ring-side seat at the Café des Phares
(which proclaims itself as the first café ‘Philo’ in France: on normal
Sunday mornings, the café hosts a crowd of antels who sit and have an
adda about a chosen topic of philosophy; there is a mobile microphone
which passes from speaker to speaker, and in the old days, the ideas
and arguments would have to compete with swirling clouds of smoke).
After ordering our beers we began that classic and time-honoured
Parisian activity of watching other human beings walk past. Normally,
Bastille would give you a catwalk of the beautiful, the fashionable
and the bohemian, but again, today, the pretty and the chic were
completely submerged, the weird and crazy outnumbered by the
deliberately, celebratorily bizarre. I tried to make categories but it
was a Sisyphean task — no sooner would I settle on one label, when
people would come along, singly or in groups, to destabilize my
slotting system.
There were posses of typical gay boys, uncovered torsos gleaming, the
nether regions encased in sailor trousers or hot pants, muscular arms
entwined. There were the Bears — large men, again topless, but fat
with hairy bellies spilling over their waistlines — the complete
antithesis of the beautifully-sculpted homoerotic ideal. There were
the cliché-lesbians, butch women with crew-cuts and leather. There
were the transexuals, regendered, rendered in amazing garb: we were
especially transfixed by a black couple, already extremely tall but
with six-inch heels stilting them close to seven feet, two Brancusi-
like spikes with the shiniest deep-brown skin, stalking above the
crowd in tight, flowing gowns and colourful plumage in their hair
which wasn’t too far below eight feet above ground. As they walked up
and down the pavement their hands moved in the most beautiful mudras;
they were there to be watched and indeed, people were riveted. There
were beautiful women walking with partners who were clearly
prophylactized against any hetero male gaze that might alight on them;
there were nerdy couples with minimalist design on their shoulders and
noses, readers of Foucault and Bordieu but maybe readers also of Marie
Claire; there were typically French-looking people and there were
people of almost every nationality; there was colour, there was
spangle, there was flowing cloth and everywhere, on this gift of a
summer evening, with the huge column in the middle of the roundabout
catching the slowly setting sun, there was skin, skin and more skin.
It took me a while, though, to register something: there were as many,
if not more, ‘straight’ people like me and my friends than there was
openly queer janata. Also this crowd, unlike some other gay
celebrations I’ve seen, didn’t seem to comprise only of the fit and
the young — there were people of all ages, all classes, all colours,
with all kinds of bulges and sags, and of every kind of sexual
orientation.
At some point, my friend, LH, who is a leader in the Green Party in
this area, went up to a tall woman, clearly a supportive constituent,
and began talking to her. My other friend, FM, and I began to wonder
whether the woman LH was talking to was actually a woman. We decided s/
he was either a man dressed as a woman or someone who had had a sex
change operation. When LH came back accompanied by the tall one, we
were none the wiser, and she was introduced to us as P, one of those
French names that can belong either to a man or a woman depending upon
the exact spelling. P was dressed in a stylish black number, a skirt
that fitted her body just so, and from her bag she took out a purse
and showed us the feather boa it housed. For a tall, big-built wo/man,
P had a very soft voice and, whatever her exact status, she spoke
exactly like a well brought-up upper-class Frenchwoman — thoughtful,
considerate, eloquent (as far as I could make out with my extremely
limited French) — about her work as a film actor working with some of
the biggest names in French cinema today.
After a while, FM and I decided to go and watch the the parade pass
by. The boulevard the trucks were about to take was thronged with
people but we wove our way to the side of the road and waited. The
whole avenue was lined with the scariest cops in the world, the CRS,
in full dark blue regalia: body armour, helmets, visors, batons,
holstered pistols, radios. Looking at them you would have thought the
parade was about to make an attempt on Sarkozy’s life and out his wife
as a lesbian. “Now they almost never use normal Gendarmerie,” FM told
me, “any massing of people and they bring out these heavy pigs, anti-
G8, pro-environment, fête de la musique, gay pride, anything.” Looking
at them it felt as if the French State needed to show the revelling
public who was the ultimate boss even, or rather precisely, at the
site where the French Revolution began.
Their hands on straps, the CRS watched impassively as the big
articulated trucks began to pass, each with its own blaring music, its
own particular sub-set of queeriety — Montmartre Lesbians, Toulouse
Bears, Techno Trannies — the crowd danced and cheered. People ran
between the trucks, waving banners, blowing whistles, dancing, the
evening sunlight tracing their outlines. I wondered how many of the
CRS cops were gay, or at least wishing they were out of uniform and
dancing here with very few clothes on. Watching this speeded-up
circus, FM and I had the same thought at the same time. “What if the
whole world becomes gay in fifty years?” And then we both answered
again simultaneously: “Naah, not possible!” Though later we both
agreed that a few more millions of gay people would be no bad thing
for the world, or for our culture, our population, and our ecological
survival.
The news of the Delhi High Court judgment on 377 came a few days after
I’d returned from Paris to London. The feeling was uncanny, not
elation exactly, but as if a long-term virus had lifted from this
society to which I belong. But it was, perhaps, a little premature to
allow that thought. It might be more accurate to say a long overdue
first injection was delivered to begin the cure of the serious malaise
of homophobia in India. The reactions of the religious mafias, the
alacrity of their jumping into bed with each other across faith-
divides, the stupid, stupid statements, all point to the fact that the
battle has just been joined and far from won. Yet, this is a great and
valuable gift from the Indian judges when you look at the judgment in
the context of the increasing criminalization of homosexuality in
African countries where there has been no previous history of such
legislation, the ruthless campaign of various churches, the ceaseless
leveraging by the Vatican and other reactionary cluster-flocks. It is
easy for autocrats in large chunks of the world to dismiss what
happens in the evil and debauched ‘West’, to dismiss liberal laws and
attitudes in Europe as belonging to the ‘other’. It will be much more
difficult for these countries and these governments to dismiss what
happens in India. So, long may the gay pride parties fill the streets
of Germany, France and Holland, but the real party has finally begun
to be put together, and this beginning has been constructed by a pair
of men who would never be caught dead wearing nothing but tight black
leather hot pants on a summer evening in Paris.
bademiyansubhanallah
SANJAY K. JHA
New Delhi, July 11: The Rashtriya Swayamsevak Sangh may be considering
a more tolerant stand on homosexuality compared with those Hindu
religious leaders who have condemned the recent Delhi High Court
judgment outright.
In the latest issue of Sangh mouthpiece Organiser, S. Gurumurthy, a
member of the Sangh think tank, says that tolerance for deviant
behaviour is part of the Indian ethos.
His article objects to the “shameless debate” on the subject following
the court verdict, and argues that traditional Indian society had
wisely ignored deviants rather than punish them. The court verdict, it
says, tries to do the same by demolishing a legal framework that
punished homosexuals.
The high court has ruled that sex in private between consenting adults
cannot be deemed criminal, thus legalising gay sex and all other forms
of non-conventional sexual acts.
Sangh parivar outfits like the Vishwa Hindu Parishad (VHP) and several
Hindu religious leaders have, however, described the verdict as an
assault on Indian culture and joined Muslim and Christian clerics in
criticising it.
Yoga guru Baba Ramdev, who has been part of various socio-religious
campaigns by the VHP, is said to be planning to move the Supreme Court
against the judgment. There has even been talk about leaders from the
various faiths filing a joint appeal in the apex court.
Gurumurthy, however, quotes historians and religious texts to argue
that unlike Christians and Muslims, the Indian tradition in the pre-
colonial era did not punish or despise gays. It regarded them as a
marginal fact of life not even worth discussing.
According to his article, Indian society was built not around state
laws but around social and family norms that were not forcibly
applied. Indian civilisation recognised diversity in behaviour and
morals, and never imposed one rule on all.
Gurumurthy cites how polygamy was, and is, prevalent in Indian society
although it has accepted monogamy as the norm. He says Ram, who had
one wife, and his father Dasrath, who had many, are both worshipped
while Sita and Meera, different in terms of family values, are both
considered great women.
The article, however, cannot be taken as expressing the official
position of the Sangh, which may still decide to swim with the tide
and oppose gay rights in the name of Indian culture.
...and I am Sid harth
bademiyansubhanallah
Sid Harth
Aaradhana Jhunjhunwala, 15 - 07 - 2009
The process of decriminalising homosexuality has begun, but the road
to equality remains a long one
In 1861, Thomas B. Macaulay, first Law Member of the Governor-
General's Council in India introduced Article 377 to the Indian Penal
Code, outlawing all "carnal intercourse", consensual or forced. The
law had been introduced in nearly all territories governed by Queen
Victoria. The reasons were obvious to British administrators.
Homosexuality, they believed, allowed the spread of incurable diseases
and hence must be curbed to protect the empire's soldiers and their
health in far away shores. Its acceptance posed a threat to Victorian
family values and the country's population growth rate. Preventing
either scenario became necessary and British governments saw the need
to make "carnal intercourse" a punishable crime. In 1950, when an
independent India adopted a new constitution, its criminal code
continued to include Article 377:
Whoever voluntarily has carnal intercourse against the order of nature
with any man, woman or animal, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
Explanation: Penetration is sufficient to constitute the carnal
intercourse necessary to the offence described in this section. (IPC,
Art. 377)
Article 377 continued as the code for prosecuting "carnal intercourse"
involving any human and remained unchallenged because of its
applicability in cases of rape and paedophilia. In a majority of the
nations once part of the erstwhile British empire, such a law has
since been redirected from a universal edict to one applicable only in
cases of non-consensual sex or sex with minors. However, in India,
neither the judiciary nor the legislature were concerted in trying to
remove the law's applicability to consenting adults. As a result,
homosexuals and transvestites have not only faced social prejudices
regarding their sexual preferences but, for over 60 years since India
became an independent country, they have lived here as criminals.
Many defenders of 377 point out that no court of law has prosecuted an
individual on the basis of their private sexual practices with another
consenting human. Yet the presence of 377 in India's criminal code is
reason enough for members of the "queer" community to feel
discriminated against and feel hard-pressed at the sharp end of the
law.
The fear of being rounded up and put behind bars has prevented many
homosexual men and women from coming out of the closet and has proven
to be a stumbling block for agencies working for their safety and
rights, working to promote safe sex and prevent the spread of sexually-
transmitted diseases including AIDS. The latter is a major cause for
concern since India has one of fastest growing number of people
infected by the HIV virus.
To provide basic civil rights to individuals who have not harmed
anyone and to prevent a deadly disease from becoming more rampant, the
Naz Foundation and similar NGOs filed a Public Interest Litigation at
the Delhi High Court in 2001, asking it to read down Article 377 and
remove its applicability to consenting adults of the same sex.
On 2 July, a Delhi High Court bench of Justices A.P. Shah and S.
Muralidhar announced its decision to read down Section 377 of the
Indian Penal Code, effectively begining the process of decriminalizing
homosexuality in the country. The justices ruled that any law making
consensual sex between adults of the same sex violates the fundamental
rights of equality, non-discrimination and inclusiveness enshrined in
India's constitution. They reasoned further that those who wish to
retain the aforesaid clause in 377 on moral grounds must realize that
no group of persons can be branded as criminal because of the state's
moral disapproval. Constitutional approval would be necessary and the
Constitution of India was based on the tenets of equality and
inclusiveness. Nevertheless, the court very clearly specified that 377
would continue to apply to cases of non-consensual non-vaginal sex and
sex with minors.
While the decision brought much joy to its beneficiaries who can no
longer be rounded up as criminals because of their sexual preferences,
there has been considerable debate regarding its social and cultural
impact. Issues of sexuality and sex between heterosexuals are not
openly discussed topics in India, hence the High Court's ruling seems
preposterous to those who are afraid to allow it to enter public
discourse. Religious leaders of Hindu, Muslim, Sikh and Christian
denomination have shown remarkable unity in pointing out the moral
vicissitudes of the court's judgment.
B.P. Singhal, a retired officer of the Indian Police Services and a
Hindutva ideologue lashed out at the court's decision in this
interview with Open magazine. He claims he is not against homosexuals
but wants 377 to remain as is so it may serve as a deterrent. The
argument Mr. Singhal makes is rather convoluted and worth a read, with
the veteran making remarks such as, "Lesbians only end up in suicide.
Male-to-male breeds diseases. Female-to-female are harming themselves
only." Comments such as these relied on a thinly-veiled current of
xenophobia, suggesting that homosexuality is a corrupting western
introduction to traditional, authentic Indian culture.
Supporters of the High Court decision point out that Article 377, not
homosexuality, was an import from the west. Ashok Malik in the Asian
Age, Renuka Narayanan in the Hindustan Times both argue that
homosexuals have always existed and been part of Indian culture as
evidenced in ancient scriptures and sculptures. While homosexuality
was not always an approved practice, they claim it was not considered
a criminal act unless involving a minor. Antara Dev Sen points out
further that India being a secular state, the judiciary need not pay
attention to the cries of religious leaders.
Those in favour of the High Court's ruling caution that it will be
some time before Indians with alternate sexual preferences can really
live as free and equal citizens. Firstly, as many legal experts have
analyzed, the Delhi High Court ruling is applicable only to the state
of Delhi. The ruling should serve as a precedent for future court
cases, yet a judgment from the apex Supreme Court will be necessary to
allow it to apply countrywide.
Secondly, India's political class, which has been asked to consider
revisiting 377 by parliamentary action, is now scared to voice its
opinion on the matter. In 2008, the Home Ministry had rejected any
such plea as it claimed that homosexuality "immoral" and against the
ethos of Indian culture. However, the Health Minister supported
decriminalization of homosexuality in order to provide transparent
access to healthcare facilities for all individuals. In June, Law
Minister Veerappa Moily promised to consider the scrapping of archaic
clauses in 377. Ever since, the minister and his colleagues have
chosen to remain silent on the matter. In a country where religion is
often a basis for garnering votes during elections, politicians are
afraid to anger religious leaders who have come out against the High
Court ruling.
The Supreme Court of India notified the government regarding a Special
Leave Petition filed by two citizens challenging the Delhi High
Court's decision. The next hearing for the petition is on 20 July,
before which the government will have to take a stance on 377. It has
been reported that due to a lack of consensus and the sensitivity of
the matter, the government is likely to ask the apex court for an
extension to "study" the high court's judgment.
The process of recognizing homosexuality and making provision for
openly homosexual couples in the country's institutions will be a
complicated one. India's military institutions have traditionally been
closed to the idea of including homosexuals. In general, people prefer
to not talk about homosexuality. In fact, columnists in some
"vernacular" dailies argue that there is no need for any debate on the
subject at all and unnecessarily certain individuals have chosen to
make it a cause for concern. The "queer" community is delighted by the
judgment. Some even went on to marry their same sex partners in the
state of Punjab, despite the fact that the court announced no changes
to marriage laws.
However, after the initial euphoria, there is much ground to be
covered in allowing ordinary men and women to freely embrace their
sexuality. The government and the Supreme Court's mettle will be
tested over the coming weeks as they must decide how to keep the
promise of equality and inclusiveness alive without any serious
backlash from those who see changes to Article 377 as an attack on
religious and cultural values.
bademiyansubhanallah
Shohini Ghosh, Hindustan Times
New Delhi, July 02, 2009
First Published: 23:06 IST(2/7/2009)
Last Updated: 23:55 IST(2/7/2009)
In a historic judgement, a two-judge bench comprising Chief Justice A
P Shah and Justice Murlidharan has decriminalised non-heterosexual sex
between consenting adults. In an eloquently argued judgement of 150
pages, the bench has struck down Section 377 of the Indian Penal Code
(IPC), a colonial legislation drafted by Lord Macaulay in 1860, that
criminalised “carnal intercourse against the order of nature”
punishable by imprisonment extending up to ten years. India was one of
the few countries left in the world that criminalised and
discriminated on the basis of sexual orientation. By overturning
Section 377, the Delhi High Court has foregrounded the importance of
sexual rights, lent dignity to people of different sexualities and
upheld the Constitutional values of democracy and equality.
Arguing that Section 377 is violative of Articles 21 (right to life
and personal liberty), Article 14 (equality before law and equal
protection from law) and Article 15 (prohibiting discrimination on
several grounds including sex), the judgement holds that if there is
one “constitutional tenet” that can be considered an “underlying
theme” of the Indian Constitution, it is “inclusiveness”.
Nurtured over many years, “inclusiveness” recognises “a role in
society for everyone” where “those perceived by the majority as
‘deviants’ or ‘different’ are not ‘excluded or ostracised’”. It argues
that “Constitutional law does not permit the statutory criminal law to
be held captive by the popular misconceptions of who the Lesbian, Gay,
Bisexual and Transgender (LGBT) are. It cannot be forgotten that
discrimination is the antithesis of equality and that it is the
recognition of equality which will foster the dignity of every
individual.”
However, it retains the provisions of Section 377 to govern “non-
consensual penile non-vaginal sex and penile non-vaginal sex involving
minors” thereby allowing child sexual offenders to be prosecuted under
it. However, it is now being strongly argued that child rights are
best protected, not by the provisions of 377, but an entirely separate
law.
This visionary judgement is the culmination of a ten-year legal
battle. In 2001 Naz Foundation (an NGO related to HIV/Aids issues)
filed a petition in the Delhi High Court asking for Section 377 to be
‘read down’ by decriminalising consensual sex among adults. In
September 2003, the Government insisted on retaining Section 377 on
the grounds that ‘Indian society’s disapproval of homosexuality was
strong enough to justify it being treated as a criminal offence even
where adults indulge in it in private’.
In February 2006, the Supreme Court ordered the High Court to
reconsider the constitutional validity of Section 377. The Naz
Foundation petition was supported by Voices Against 377, comprising 12
organisations across the country while it was being opposed by the
government of Delhi and others. The position of the government
(represented by the Ministries of Health and Law) has been conflicted
while many of its affiliates demanded decriminalisation.
Naco (National Aids Control Organisation) demanded the scrapping of
Section 377 as it was obstructing effective health interventions. The
172nd report of the Law Commission of India and the recommendations of
the National Planning Commission for the 11th Five Year Plan also
demanded decriminalisation of homosexuality.
In the last two decades, LGBT activism played a major role in creating
awareness on the issue. In 2006 writer Vikram Seth released a public
letter demanding that the “cruel” law be struck down. The letter was
supported by a large number of signatories including Captain Lakshmi
Sehgal, Aruna Roy, Soli Sorabjee, Shyam Benegal, Shubha Mudgal,
Arundhati Roy, Aparna Sen, Mrinalini Sarabhai and demanded the
scrapping of the “brutal law” that “punitively criminalises romantic
love and private, consensual sexual acts between adults of the same
sex” while being used to “systematically persecute, blackmail, arrest
and terrorise sexual minorities”. Amartya Sen also asked for an
abolition of the “colonial era monstrosity” that ran contrary to “the
enhancement of human freedom” and India’s commitment to “democracy and
human rights”.
Like all laws, Section 377 was used both inside and outside the
courtroom. In 2001, activists of Bharosa Trust, Lucknow were arrested
under Section 377 for running a “gay racket” and conspiring to
“promote homosexuality” through advocating safe sex practices among
homosexual and bisexual men. In 2006, the Lucknow police entrapped
five gay men by tracking them over the internet and then arresting
them under Section 377. For years, police have used Section 377 to
extort, threaten, intimidate and harass LGBT people. Commenting on how
law-enforcers can misuse such penalisable offences, Amartya Sen
observed that the harm done by such an “an unjust law” can, therefore,
“be far larger than would be indicated by cases of actual
prosecution”.
It remains to be seen how the UPA government responds to a judgement
that derives its inspiration from a Nehruvian vision of ‘Equality’.
While moving the ‘Objective Resolution’ on December 13, 1946,
Jawaharlal Nehru said (and the Judgement quotes): “Words are magic
things often enough, but even the magic of words sometimes cannot
convey the magic of the human spirit and of a Nation’s passion. [The
Resolution] seeks very feebly to tell the world of what we have
thought or dreamt of so long, and what we now hope to achieve in the
near future.”
These words no doubt echo the feelings and aspirations of all LGBT
people and their friends and family.
Shohini Ghosh is Sajjad Zaheer Professor at the AJK Mass Communication
Research Centre, Jamia Millia Islamia, New Delhi
bademiyansubhanallah
B Vijay Murty, Hindustan Times
Email Author
Chaibasa (Jharkhand), July 06, 2009
First Published: 01:38 IST(6/7/2009)
Last Updated: 01:41 IST(6/7/2009)
Homosexuality or consensual sex between two members of the same gender
may have been legalised now, but among the Ho tribe of Jharkhand it
has always been socially accepted. Homosexual men are called Kothi
Panthis in the region. There is no shame attached to being one.
The numbers of Kothi Panthis has been constantly increasing. Some
attribute this to the near total absence of women in and around the
numerous mines in the area, where a large number of males are at work
all day and night.
A survey conducted by Citizen Foundation, an NGO, in a radius of 20 km
in and around Chaibasa town in Jharkhand has revealed that the numbers
of homosexual men were much higher than elsewhere. There are 10
meeting points at which these men assemble at Chaibasa every evening.
There are at least two couples who claim to be married to each
other.
Homosexuals here embrace all professions: some are farmers, some
workers, some businessmen, some even government officials. If they are
Hos, they face no social censure. However, in recent years, two of
them have died of AIDS, while two others are known to have contracted
the disease.
"Observing the alarming rise in their numbers and the rampant practice
of unsafe sex, the Jharkhand Government invited us to spread awareness
and carry out interventions and treatment programmes among them,"
Sanjeev Kumar, the project manager of Citizen Foundation, told
Hindustan Times.
He said that they begun work in April last year in assistance with
Jharkhand State Aids Control Society, and explored several unusual
facets of the Ho community.
"Most of them had developed relationship with their partners from
their childhood," said Kumar.
"It's tough convincing them to stop practicing homosexuality," said
Singh. "Tribal society has no hassles accepting gay marriages. It has
been happening amongst them since decades."
Citizen Foundation's outreach workers, Vikash Verma and Anand Tripathi
said they conduct monthly meeting of the group members. "The meetings
focus primarily on improving health, financial status, and living
conditions. We arrange bank loans for them to start business and lead
dignified lives," said Verma.
Though largely ignorant of the historic Delhi High Court ruling
legalizing homosexuality, a group member said, "Now, at least, the
police will not harass us."
bademiyansubhanallah
Baba Ramdev walks among Homosexuals
By: Hemal Ashar Date: 2009-08-17 Place: Mumbai
Posters of the "homophobic" yoga guru were very popular at the gay
pride march yesterday
Yoga guru Baba Ramdev was an unlikely poster boy at the Queer Azaadi
March yesterday afternoon.
Several of the 500 people present at the march were carrying posters
of Baba Ramdev who spoke out against the Delhi High Court ruling
decriminalising homosexuality.
One clutch of men carrying his poster said their message to Baba
Ramdev was "unprintable". Yet another Ramdev placard-bearing woman,
Sabah, said, "Maybe he is just terribly homophobic."
Actress Celina Jaitley flagged off the march at 3.40 pm while dancing
on Kennedy Bridge with lezim dancers.
At the colourful parade, a young man wore a poster saying, 'My brother
is gay and I am proud of him', another woman held up a banner saying,
'Proud Indian lesbian'.
Sophie wore a black T-shirt saying, 'I love my girlfriend'. She said,
"My girlfriend is not at the march, but I hope she is proud of me
wearing this."
Professor Nandini Sardesai, a sociologist, was present at the march
and was heartened by the personal messages.
"But attitudes still need a change. Six of my students are doing a
project on gay issues, but only four were allowed at the march.
Parents of the other two didn't want them to attend a gay event.
It would be easier to explain to my maid to change her mindset, than
the so-called educated and enlightened people," said Sardesai who was
dressed in all pink in support of the gay cause.
Gay-Together at Liquid Lounge
The gays, who took part in the Queer Azaadi March yesterday, met up at
the Liquid Lounge at Charni Road last night to celebrate its grand
success.
The choice of songs reflected the mood, including Amma Dekh... Tera
Munda Bigda Jaye and Maa Da Ladlaa Bigad Gaya.
Around 700-900 gays attended the party and around 90 gays from the
Delhi joined in the celebrations.
According to gay activists, this was one of the biggest parades in the
country.
Inputs from Varun Singh
Sid Harth
Apex court issues notice to Centre on gay ruling
18 Aug 2009, 0238 hrs IST, ET Bureau
NEW DELHI: The Supreme Court on Monday issued notice to the Centre on
the pleas challenging the Delhi High Court order decriminalising gay
sex among
consenting adults.
A bench comprising Chief Justice K G Balakrishnan and Justice P
Sathasivam asked the government to file its response on the petitions
filed by a Christian body and a disciple of yoga guru Baba Ramdev.
They said that the high court order, if allowed to become operational,
will have a catastrophic effect on the moral fabric of the Indian
society.
The court, before issuing notice to the government, however, wanted to
know what consequences will follow on the society if high court
verdict became operational?
“What consequences are you (petitioners) talking about?” the bench
asked the petitioners, Christian Apostolic Churches Alliance, an
umbrella of 22 churches in the national Capital and S K Tijarawala, a
disciple of yoga guru. Tijarawala’s advocate argued that “there is a
likelihood of destruction of matrimonial household.”
“The moral fabric of the country has been ruptured by this judgement,”
the lawyer for the Christian body said adding other implications of
the verdict was that it will lead to coming up of brothels for male
prostitution and gay parlours.
The lawyers said the nature of the high court order and the language
used in it will lead to its misinterpretation for legalisation of
prostitution. However, the bench disagreed to this argument and
remarked, “prostitution is defined under Immoral Traffic (Prevention)
Act.”
The court, after a brief argument, tagged the petitions with other
pending petitions which are scheduled to come up for hearing on
September 14.
Earlier, the apex court had refused to put on hold the high court
order. The court had said, it will wait for the stand of the
government on the issue.
bademiyansubhanallah
Child Commission approaches SC against gay sex
STAFF WRITER 19:52 HRS IST
New Delhi, Sep 9 (PTI) The Delhi Commission for Protection of Child
Rights has approached the Supreme Court challenging the Delhi High
Court's verdict legalising gay sex on the ground that it would
adversely affect child rights.
The Commission, in its petition, contended gay sex would have adverse
impact on psychological, physical and mental development of children.
The petition is likely to be taken up on September 14 when the apex
court would hear similar petitions filed by others challenging the
High Court's verdict.
The apex court had earlier issued a notice to the Centre on a petition
filed by a Christian body, a disciple of Yoga guru Ramdev and a
astrologer Suresh Kumar Kaushal seeking a stay on the High Court
verdict legalising gay sex on the ground it will have a catastrophic
effect on the society's moral fabric.
...and I am sid Harth
chhotemianinshallah
Eunuch seeks right to vote in Maharashtra Assembly polls
PTISunday, September 13, 2009 11:53 IST
Mumbai: An eunuch has moved the Maharashtra State Human Rights
Commission (SHRC) seeking the right to vote for his community and
transgenders in the forthcoming state Assembly polls.
In the four-page complaint, Laxmi Narayan Tripathi termed the denial
of Right to vote as gross violation of Human Rights in the state.
Supported by a group of four law students, Tripathi demanded that the
state government should extend the fundamental right of voting to
eunuchs and transgenders.
"There is a gross violation of the human rights of eunuchs in
Maharashtra. We are not provided with ration cards and not permitted
to vote," the complaint said.
The SHRC has issued notices to the chief secretary of the state
government with a direction to ensure that departments concerned with
ration cards and voter ID cards file their reply to the complaint by
November 4.
The commission has also directed the state government to suggest in
their reply affidavit steps being taken or to be taken with this
regard.
"Tamil Nadu government has already issued ration cards to the eunuchs
of that state. It is the only state to have recognised eunuchs as a
different sex," said the complaint.
Tripathi further said that eunuchs in Maharashtra are deprived of
life, liberty and dignity.
"If we (eunuchs) are not given a chance to lead a normal life then we
are left with the ultimate choice of begging or prostitution to earn
money," the complaint states.
The commission had directed the state government to file its reply to
the complaint by August 24 but the government failed to do so
following which they have been given time till November 4.
The students -- Niraj Marjadi, Dharampal Dave, Jay Vakil and Kushal
Mehta -- had earlier this year, filed an RTI application before the
Maharashtra State Election Commission seeking to know the rights
accorded to eunuchs in the state.
"However, the election commission returned the RTI application back
saying that they cannot reply to such applications," Dave said.
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