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Press Release: Release of second edition (digital) of ‘Less than Gay’ – A Citizens’ Report on the status of Homosexuality in India

    The AIDS Bhedbhav Virodhi Andolan (ABVA) is releasing the second edition of ‘ Less than Gay ’ – A Citizens’ Report on the status of Homo...

Thursday, 27 April 2023

Open Letter to the Chief Justice of India on Same-sex Marriage Demand Pending Since 1991

 

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

 

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