by
Dr.
P. S. Sahni
By
now you must have perused the judgement of the Supreme Court of India which has
partially struck down Section 377, Indian Penal Code (IPC) which hitherto
criminalized any sexual act against the order of nature. The judgement was
delivered on September 6, 2018.
To
recapitulate, the Indian Government had informed the Supreme Court that it
leaves it to the wisdom of the Court to decide the issue. Actually the entire
ruling class parties abdicated their responsibility of addressing the issue
through Parliament – which alone, and not the judiciary, represents the will of
1.35 billion people of India.
The
slick high profile lawyers, counsels who appeared in the court and the
extravagantly foreign funded NGOs[i]
buckled under judicial pressure without even a whimper of protest in toning
down the original demand of complete repeal of Section 377, IPC as demanded by
ABVA in the first ever challenge to the constitutional validity of Section 377,
IPC way back in 1994 in the case filed before the Delhi High Court:
AIDS Bhedbhav Virodhi Andolan vs. Union
of India & others.
The
case was filed by ABVA through its member and advocate Shobha Aggarwal.
On
the recent Supreme Court judgement we urge you to immediately bring – as a
first step – an Ordinance ordaining that the whole of Section 377, IPC stands
repealed. The speed with which the Ordinance should be brought must match the
speed with which the Ordinance on triple
talaq has been surreptitiously introduced. Media reports in the last 4
weeks indicate that several same-sex couples are approaching High Courts of
different states for relief and security in being allowed to stay together.
They should not be forced to go through this ordeal just close on the heels of
the Supreme Court judgement of 6 September, 2018.
The
piecemeal relief provided by the Supreme Court to LGBTQI community will
certainly not alone resolve the long standing demands made by ABVA in 1991 – and
towards which successive Central Governments of all hues have indulged in
masterly inactivity.
We
quote from one of the most respected LGBTQI activists and academician Ashley
Tellis – the conscience keeper of sexual minorities – who has suffered all his
life on account of being open about his sexuality; the frequent loss of jobs is
but one aspect of his being at the receiving end of the establishment:
"It just renders privacy rights to
elite gay people. I've made this point again and again. Nobody wants to listen
because of the mindless hysteria around the subject."
"Privacy in this context is a
classist idea. Only people who have a bedroom can have privacy. Hijras on the
road who are often forced to have public sex for money to survive don't have
this privacy. They are harassed by the police, their clients and the societies
around them. This doesn't change anything for them and the rest of the LGBTQ
community on the ground. People have bedrooms and privacy everywhere. They
don't need a special law to change that. This is something those who are
privileged exercise anyway. I don't think there will be any actual change on
the ground."[ii]
The Supreme Court judgement refers
to studies quoted by petitioners indicating the LGBTQI population to be about 7
to 8%. Now in a country of 1.35 billion people it translates to a population of
100 million people belonging to the sexual minorities. The youth constitutes
60% of this population. About time the political parties should appreciate that
a population of 100 million people constitutes the second largest minority
community in India next only to the Muslim community; and that the sexual
minority community can influence, nay change the contours of government
formation – both at the Centre and state level in future, nay as early as 2019.
Future
ministers in Indian Government could well include a Christian Lesbian; Muslim Gay; Sikh Queer; Tribal of Mongoloid
race (from the North Eastern States of India); Transgender; Dalit (of Dravidian
stock) Bisexual. This political formation could be the best bet for a secular,
democratic regime. The political interests of the working class (workers,
farmers) would need to be assured. The Pride marches undertaken by the LGBTQI
persons from time-to-time could evolve after a long, long haul into a Self-Respect Movement. The transgender
community (eunuchs) have led the way for the rest of the sexual minorities
group; they have been in electoral politics for over two decades and several of
them have won elections to become Mayors in towns/cities in India.
We
reiterate the updated Charter of Demands for your kind consideration and positive
action:
1.
Repeal Section 377 of
the Indian Penal Code in full, instead
of in part as done by Supreme Court judgement dated 6 September, 2018 in Navtej Singh Johar vs. Union of India; the
relevant sections of the Army, Navy and Air Force Acts, 1950 should also be
repealed in full.
2.
Enact civil rights
legislation to offer LGBTQI citizens the same protections now guaranteed to
others on the basis of caste, creed, and colour.
3.
Reform police policy
(for example, by calling a meeting of senior police officers, including all Station
House officers (SHOs)), to put an end to the harassment of gay people at the
hands of the police and public. Police authorities should take the initiative
to make available information on all local public nuisance laws used on gay
people in public places, and the relevant procedures and penalties specified
therein. They should also make public the numbers of arrests, prosecutions and
convictions of gay people under various laws along with the period of sentence,
amount of fine and age of the offenders.
4.
Establish a Commission
to document human rights violations of gay people, such as violence and
blackmail directed at gay men and lesbians, as well as atrocities within
marriage on lesbians who may be married to men.
5.
Redefine the offence of
rape in the Indian Penal Code to include all coercive sexual acts rather than
only vaginal penetration. Rape laws should be made applicable to both men and
women, irrespective of whether they are gay, non-gay, married or single.
6.
Have the Press Council
of India issue guidelines for respectful, sensitive and representative reporting
on gay men and lesbians and issues around homosexuality.
7.
Have the Medical Council
of India (MCI) issue guidelines to the effect that refusal to treat a person on
the basis of his/her sexual orientation is a cause for censure on grounds of professional
misconduct. Bring medical curricula in schools and medical colleges in line
with the latest scientific theories of homosexuality.
8.
Consider unethical any
reckless and uncalled for sex-change surgery without informed consent and
counselling. Counselling should be made available to help a person deal with
the normality of his/her gender incongruities. Any irresponsible
experimentation by medical professionals in this area should be made punishable
by law.
9.
Institute a massive,
nation-wide survey of sexual behaviour in our society.
10.
Ensure that everyone
receives judgement-free health education related to sexuality, homosexuality,
Sexually transmitted Diseases (STDs), HIV testing, AIDS and condom use. All AIDS-related
education should explicitly acknowledge sexual interaction between people of
the same sex.
11.
Make available anonymous
HIV testing facilities for all.
12.
Alter the heterosexist
bias in education, from school onwards, by presenting positive images and role
models of gay man and lesbians and of homosexuality as a viable, healthy
alternative lifestyle.
13.
Amend the Special
Marriages Act to allow for marriages between people of the same sex (or between
people who may be inter-sexed, or have undergone sex-change surgery, and any others)
making marriages as legal when solemnized in the presence of
friends, relatives or any other person by exchanging garlands or rings or by a
declaration in a language understood by both parties that they accept each
other to be their spouse.[iii] All consequential legal benefits of marriage should extend to gay
marriages as well, including the right to adopt children, to execute a
partner’s will, etc. Same-sex couples should also be entitled to the legal
benefits that accrue to their heterosexual counterparts of common law
marriages. No presumption as to fitness or unfitness for custody of a child or
visitation rights shall arise based on sexual orientation of either parent in
such a situation. In case marriages among members of sexual minorities group
are to be undertaken in a temple, the facility of a non-Brahmin priest duly
trained at a Government centre should be provided.[iv]
14.
Alternatively, legally
recognize and encourage friendship agreements between single people of the same-sex
as a valid way of organizing family life.
Dr.
P.S. Sahni
Member,
AIDS Bhedbhav Virodhi Andolan
Email:
aidsbhedbhavvirodhiandolan@gmail.com
[i] It may be recalled that both
Lawyers Collective and Naz Foundation, India’s representatives had been
hobnobbing with the Indian Government (NACO, Health Ministry etc.) over AIDS
and related issues. Both receive massive foreign funds. The head of one of
these NGOs has been bestowed an award by the Indian Government; in fact in 2001
the demand for repeal of Section 377, IPC had been toned down by NAZ even in
its prayer before the Delhi High Court.
[iii] Tamil
Nadu legalized the concept of Self Respect Marriages advocated by Periyar E.V.
Ramasamy, devoid of Brahminical priests and rituals through an exclusive
enactment in 1968!
[iv] In December 2015, the Supreme
Court of India gave a verdict which allowed the appointment of duly trained
priests from any caste.
2. http://www.kashmirtimes.com/newsdet.aspx?q=83587
3. http://www.gaylaxymag.com/blogs/an-open-letter-to-indian-parliamentarians-to-get-section-377-ipc-repeal-in-toto/#gs.EarC5BE
