An Open Letter to Sonia Gandhi

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 criminalizes 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 decriminalizing homosexual acts. Amongst the political parties and their allied groups, the Bharatiya Janata Party, Vishva 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.” [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 ABVA (AIDS Anti-Discrimination Movement of India). It was the first such public report on the issue and initially popular magazine ‘Sunday’ had called it pornographic literature. The ABVA had to approach the Press Council of India (PCI) to adjudicate whether the Report is pornographic or not. Justice Sarkaria the then Chairman of the PCI finally ruled that it is not.

Interestingly this report by 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 decriminalized in India, she replied, ‘Not in my lifetime.” (communication from a Delhi University lecturer)” [Page 64, Less Than Gay]

More than a quarter century after Mrs. Gandhi’s demise your public statement on 11.12.2013 Supreme Court judgement on homosexuality is in tandem with changing times and mores. In 1992, 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 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 7 years. This case was used to mobilize 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 ABVA have been documented extensively in journals, magazines, books, newspapers and websites. [e.g. 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] 

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 functions of 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-criminalizing homosexuality or get the 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 the Parliament. A large number of Private Members’ Bills brought in Parliament are courtesy Members of Parliament from Indian National Congress. In the event of difference of views with in your own party (the old guards with in 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 miniscule 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 4% 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 U.S.A.

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.

[This open letter was also published in Mainstream weekly. The link is:
http://www.mainstreamweekly.net/article4759.html ]

SC ruling on Sec 377, 'A wonderful opportunity for a fresh beginning'

by

Ashley Tellis

In 1991, the AIDS Bhedbhav Virodhi Andolan, an independent, non-funded political movement that had begun in the ’80s when the horror of HIV/AIDS had just begun to unfold, filed for the repeal of Section 377.

In 2001, the Naz Foundation, a foreign-funded NGO, filed a PIL watering down the demand for the reading down of Section 377 to exclude private, consensual gay sex.

It sought the help of another NGO, the Lawyer’s Collective, and unofficial help from slick gay lawyers from yet more foreign-funded NGOs.

The differences between these two moments tell us the story of the LGBT movement, which became the “queer movement” in India.

The first was a committed, penniless, bedraggled group who were political, angry, seeing discrimination around HIV/AIDS first-hand and seeking to intervene. The second was a posh South Delhi NGO, which mushroomed into a ‘movement’ of elite lawyers armed with foreign judgments and NGOspeak in lieu of politics.

A progressive bench in the high court gave them their pyrrhic victory (the reading down of Section 377 to allow consensual sex between people in Delhi) which they celebrated as the end of the world as we knew it.

But what had that judgment really changed and what does its striking down change now?

People of the same sex who could afford bedrooms were having and will be having sex in them before and after both judgments. The usual chorus of homophobes (religious groups, psycho babas, conservative groups pretending to be fighting for child and minority rights) will clap and cheer. We were not legal subjects then and we are not legal subjects now.

The world for hijras soliciting sex, for Dalit and adivasi women running away from home to try and survive with each other against all odds, for middle and lower class women who run away and are hounded by their parents and accused of abduction, for male working class and sex workers who are raped and beaten daily, for the gender-bending among us who face taunts, abuse and harassment every day of our lives on the metro and on the streets, in our families and in our beds, will not change. It did not change in 2009 and it will not change now.

When will we realise that true democratic changes do not come from lip-service to fanciful words from the book of nationalist clichés but from confronting and challenging hostility to difference? When will we realise that it comes from emulating the work Ambedkar did, not just citing him? It comes from working with hijras, not just using their pain to gain street cred.

It comes from working with same-sex identified and marginalised women who must be stopped from committing suicide, not urban men who dress up in the evening for sex and become an identity category for NGOs. It comes from standing up for who and what you are everyday and not just one day of marching down the street like a colourful parrot followed by a party.

The battle against Section 377 and homophobia in this country has not yet even begun.

(The author is an academician and gay rights activist)

This article was published in Hindustan Times (12.12.2013). The link to the article is:

http://www.hindustantimes.com/india-news/sc-ruling-on-sec-377-a-wonderful-opportunity-for-a-fresh-beginning/article1-1161839.aspx