Same-sex
Marriage Demand Pending Since 1991
Open
Letter to the Chief Justice of India
In re:
W.P. (C) 1011/2022 titled Supriyo @
Supriya Chakraborty & Anr. Vs. Union
of India
Hon’ble
Sir,
The
organization ABVA (AIDS Bhedbhav Virodhi Andolan) was formed in 1988-89 and has
spearheaded the gay rights movement in India since then. All our activities
have been documented and can be accessed at http://aidsbhedbhavvirodhiandolan.blogspot.com/
. Briefly the significant ones are being outlined:
·
ABVA published ‘Less than Gay’ – A
Citizens’ Report on the Status of Homosexuality in India in November 1991. It
was co-authored by seven ABVA members. The 2nd Edition of the Report
published in 2022 can be accessed at:
https://drive.google.com/file/d/1RfsItCOMhYn9y6C3RRC6YX1XGHdxbbfT/view.
·
It contains a sixteen point Charter of
Demands viz.
“ABVA urges the Government of India to take
cognizance of the following demands and take urgent steps towards their
realization:
1. Repeal
all discriminatory legislation singling out homosexual acts by consenting
adults in private – section 377 of the Indian Penal Code, and the relevant
sections of the Army, Navy and Air Force Acts, 1950. In other words,
decriminalise sodomy.
2. Enact
civil rights legislation to offer gay citizens and other sexual minorities such
as hijras the same protections now guaranteed to others on the basis of caste,
creed, and colour. Amend the Constitution to include equality before the law on
the basis of “sex” and “sexual orientation.”
3. Recognize
the right to privacy as a fundamental part of the citizen’s right to life and
liberty, including the right to his or her sexual orientation.
4. 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.
5. 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.
6. 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, nongay, married or
single.
7. Have
the Press Council of India issue guidelines for respectful, sensitive and representative
reporting on gay men and lesbians and issues around homosexuality.
8. 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.
9. 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.
10.Institute a massive, nation-wide survey
of sexual behaviour in our society.
11.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.
12.Delete the clauses in the AIDS
(Prevention) Bill, 1989, (which lies pending before a Joint Parliamentary
Committee) that provide for coercive testing, contact tracing, and isolation.
Include explicit confidentiality on sexual orientation and anti-discrimination
measures for the protection of people with HIV/AIDS.
13. Make available anonymous HIV testing
facilities for all.
14.Alter the heterosexist bias in
education, from school onwards, by presenting positive images and role models
of gay men and lesbians and of homosexuality as a viable, healthy alternative
lifestyle.
15.
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). 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, to inherit, 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.
16.
Alternatively, legally recognize and
encourage friendship agreements between single people of the same sex as a
valid way of organizing family life.”
·
The report was released at a press
conference in the third week of November 1991 at the Press Club of India, New
Delhi. It was widely reported in the national and international media. Just scanned
copy of the coverage in one of the papers The Telegraph is reproduced below
wherein inter alia the demand for legalizing the same-sex marriage was made.
·
The report in The Telegraph mentions
that a petition addressed to the Petitions Committee of Parliament was handed
over a day prior to the press conference at the Parliament House Annexe, New
Delhi.
·
The report has several case histories
wherein lesbian couples wished to live together or marry or were forced to
commit suicide.
·
In 1994 ABVA filed a writ petition in
the Delhi High Court titled Civil Writ Petition no. 1784 of 1994 titled AIDS Bhedbhav Virodhi Andolan vs. Union of
India and others; it took a year for the petition to be eventually admitted
in 1995.
·
The environment in the court room in
1994-95 was homophobic. It was diametrically opposite to what the environment
in the court room was in 2018 and presently in 2023.
·
The writ petition asked for repeal of S.
377, IPC and provision of condoms in medical setup in the confines of Tihar
Jail, New Delhi.
·
The petition came up for final arguments
in 2001 and was dismissed.
·
ABVA did a fact finding on the Mamata-Monalisa
suicide pact in 1998-99. These two women in Orissa wanted to live together and
had even prepared legal papers to this end. Facing social ostracism at their
action they attempted suicide. This has been documented in ABVA’s report “For
People Like Us” which can be accessed at:
https://drive.google.com/file/d/1fmyS6f_GoE3JbH1p3Tk7DxEDibgZYUTa/view.
·
For the last 31 years we have been
petitioning parliamentarians, political parties, Petitions Committee of
Parliament, Union Home Ministry every time the government at the Centre would
change. Till date we have neither got an acknowledgement; nor an appointment.
No action has been taken on our petitions. Our experience of over three decades
indicates that irrespective of the party in power at the Centre there is no
intention to address the LGBTQIA issues.
·
So ABVA was forced to bring out another document
in 2021 titled “The Struggle Will Continue Till Parliament Debates – Nay Concedes
– The Gay Manifesto, 1991 New Delhi, India” which can be accessed at: https://drive.google.com/file/d/15pEy5GU7oIhVpNq9hYh7pJ2lxMU2jW8b/view.
It may be mentioned that the demand for same-sex marriage was made by ABVA in
1991 – ten years before any country in the world legalized such marriages.
Through
this letter we wish to appeal to you that gay rights movement in India be not
ignored when the final judgement in the pending petitions is pronounced by the
Hon’ble Court.
Thanks.
Yours
sincerely,
P.S.
Sahni
Member,
ABVA
Email:
aidsbhedbhavvirodhiandolan@gmail.com
