This letter was written quite sometime ago, on December 24, 2013, but could not be used earlier for unavoidable reasons. However, its contents have not become irrelevant even today. Hence it is being belatedly published.
by SHOBHA AGGARWAL
It was a breath of fresh air reading your public statement on the issue of homosexuality in the backdrop of the recent Supreme Court judgement upholding Section 377 of the Indian Penal Code which criminalises homosexual acts. Ironically, this Apex Court judgement of 11.12.2013 had overturned the 2009 Delhi High Court judgement on the issue. Naturally there have been popular protests—and not just by Lesbian, Gay, Bi-sexual, Transgender (LGBT) groups—all over the country and abroad. A large section of civil society appears to be in favour of decriminalising homosexual acts. Amongst the political parties and their allied groups, the Bharatiya Janata Party, Vishwa Hindu Parishad, Rashtriya Swayamsevak Sangh perceived gay sex to be unnatural; as also the Samajwadi Party. The Left parties and Aam Aadmi Party have opposed the Supreme Court judgement; and parties in the rest of the political spectrum are maintaining a deathly silence on the issue. It is in this backdrop that your statement assumes significance. To quote: I am disappointed that the Supreme Court has reversed a Delhi High Court ruling … the High Court had wisely removed an archaic, repressive and unjust law that infringed on the basic human rights enshrined in our Constitution…I hope Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India. [The Times of India, 13.12.2013]
In 1991, a historic publication, Less Than Gay—A Citizens' Report on the Status of Homosexuality in India, was brought out by the ABVA (AIDS Anti-Discrimination Movement of India). It was the first such public report on the issue and initially the popular magazine, Sunday, had called it pornographic literature. The ABVA had to approach the Press Council of India (PCI) to adjudicate whether the Report was pornographic or not. Justice Sarkaria, the then Chairman of the PCI, finally ruled that it was not.
Interestingly, this Report by the ABVA makes a startling observation which is worth quoting:
The only other known reference to this subject in Parliament was during Mrs Gandhi's last term as Prime Minister (1980-84). When questioned by a Member of Parliament whether homosexuality would ever be decriminalised in India, she replied, “Not in my lifetime.” (communication from a Delhi University lecturer) [Less Than Gay, page 64]
More than a quarter century after Mrs Gandhi's demise, your public statement on the 11.12.2013 Supreme Court judgement on homosexuality is in tandem with the changing times and mores. In 1992, the ABVA was forced to stage a protest demonstration at the Police Headquarters, ITO, New Delhi since a large number of gay people had been arrested from the Central Park, Connaught Place on charges of being about to indulge in homosexual acts. The charges were baseless and only a means to blackmail and extort money from these people. As a felt need the undersigned, a lawyer by profession, on behalf of the ABVA filed a writ petition in the Delhi High Court in 1994 urging inter alia that the Court should strike down Section 377 of the Indian Penal Code as unconstitutional. The case titled, AIDS Bhedbhav Virodhi Andolan V. Union of India & Others, Civil Writ Petition No. 1784 of 1994, was finally disposed off in 2001 after seven years. This case was used to mobilise the LGBT community; to network with groups working with the sexual minorities urging them to appeal to the powers that be to get Section 377 of the Indian Penal Code deleted from the statute books. These early years of the gay movement in India spearheaded by the ABVA have been documented extensively in journals, magazines, books, newspapers and websites. [For example, Vimal Balasubramanian, ‘Gay Rights in India', Economic and Political Weekly, February 3, 1996; Sherry Joseph, ‘Gay and Lesbian Movement in India', Economic and Political Weekly, August 17, 1996]
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MADAM, the undersigned had also authored the report, “The Public Interest Litigation Hoax—Truth Before The Nation”, after completing the research in 1999-2000. (The Report was published much later.) Extracts from the Report were published in the Mainstream issue of August 5, 2006, Vol XLIV, No. 33. One of the pertinent conclusions reached in the Report is the reiteration of separation of the functions of the judiciary and legislature; in particular restraining the judiciary from legislating. It is with this wisdom and conviction gained that one writes to you to ensure that an Ordinance is brought forth de-criminalising homosexuality or get Parliament to legislate on the issue at the earliest. The Union of India filing a review petition in the Supreme Court is an abdication by the government of its primary responsibility of making and updating laws in consonance with the Constitution of India and changing realities. It is true that during voting on any such legislation the arithmetic may not be in favour of the passage of the Bill. But this alone cannot be reason enough for letting a minority community to be left facing inhumanities. After all, the solution lies in inclusiveness as articulated by Pandit Jawaharlal Nehru.
Your own father-in-law, Feroze Gandhi, had brought a Private Member's Bill in 1956 titled, Parliamentary Proceedings (Protection of Publication) Bill, which was cleared by Parliament. A large number of Private Members' Bills brought in Parliament are courtesy Members of Parliament from the Indian National Congress. In the event of difference of views within your own party (the old guards within the 100 year old Congress party may have reservations) would you consider bringing a Private Member's Bill in the very next session of Parliament just before the 2014 general elections in your own name?
Lastly, the LGBT is not a minuscule minority as the 11.12.2013 judgement presumes. No authentic census has been conducted in India on the exact number but the number is likely to be close to four per cent of the population, if one were to go by the studies done by Alfred Kinsey, an American scientist, in the last century. There is no known reason to believe otherwise. This constitutes a sizeable number of potential voters for any party. Reports indicate that President Obama got re-elected courtesy a swing of this section of voters towards the Democratic Party in the USA. New Delhi Shobha Aggarwal
P.S.: The review petitions filed by the Union of India and others seeking review of the 11.12.13 judgement were also dismissed by the Supreme Court on 28.01.2014.
The author is the Joint Secretary, PIL Watch Group and associated with the ABVA since its inception in 1989. She can be contacted at pilwatchgroup @gmail.com