This post has been self-published on Youth Ki Awaaz by Deepa Kumar. Just like them, anyone can publish on Youth Ki Awaaz.

In India, Human Rights Were Only The Beginning

More from Deepa Kumar

By Deepa Kumar:

It was 2009 — the Delhi High Court helped India take a step forward — to prove herself not only as the world’s largest democracy, but also as one of its most progressive ones. It was a Public Interest Litigation (PIL) plea filed by a non-governmental organisation called Naz Foundation, deciding in favour of which the Delhi High Court struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private.

homosexuality

In support of its judgment, the High Court bench said, “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution. We hold that sexual orientation is a ground analogous to sex, and that discrimination on sexual orientation is not permitted under Article 15.”

To put it plainly, the above judgement was a landmark one in many ways. Not only did it uphold the privacy & dignity of consenting adults, it also paved way for a subservient community of India to find its rightful place in society. Finally.

It would not at all be incorrect to say that there have been several homosexual references within the purview of Hindu mythology as well. To say that homosexuality is a new age phenomena would be nothing but a convenient distortion of the truth: From the Mahabharata to the Puranas, in myriad forms, homosexuality has been depicted down the lanes of Indian history. For instance, the writing is also on the wall for a keen traveller who finds himself standing at the feet of the famous temples of Khajuraho.

In 2009, when the Delhi High Court passed the aforementioned judgment, it opened a Pandora’s box of a different kind. Very vividly sketched in my memory are the many queer pride parades that were conducted, the many discussions that were held, in order to sensitise the Indian society with the idea of greater inclusion — to accept same-sex loving individuals as anything but an unnatural fraction of that society. Giving the movement greater strength was the fact that the involved individuals had judicial backing for their cause, coupled with the hope that legislative backing would be following suit soon.

As per the liking of society or not, homosexuality had walked into many living rooms and dining areas of Indian homes. While many individuals had finally started ‘coming out’, many others had started registering their support, reserving judgmental attitudes & finally seeing homosexuality for what it actually is — a natural phenomenon; far-far away from a ‘medical condition’ for which an individual needed to see a psychiatrist. And if there is one common thing present in the living rooms of most Indian families, it would be the television, and even there, homosexuality had slid in, thanks to the Fastrack TVC on coming out of the closet.

As a child, I remember staring at huge billboards painted across the city of Mumbai, which said, ‘Balbir Pasha ko AIDS hoga kya?’ On probing my mother for days together as to who Balbir Pasha was & what was this AIDS thing happening to him, she finally conceded and explained what AIDS was. I believe I was still too young to understand fully, but over a period of time I did notice that Operation Lighthouse — the Population Services International India’s program to stem HIV/AIDS — which was responsible for the iconic Balbir Pasha campaign, had made the word ‘condom’ more acceptable in Indian homes. However little that I was back then, this campaign helped me grow as an individual with ideas that safe sex & the use of a condom is a go-go & that HIV/AIDS being contagious by mere touch is a no-no. Of course Revathi’s strong-messaged Phir Milenge also helped.

A long-sighted vision of the 2009 Delhi High Court judgment could mean the same for many of the children of our society — who would grow up tomorrow to be adults who haven’t been conditioned to judge homosexuality, instead have been nurtured to acknowledge its rightful space in society and/or not feel mortified for being part of the community, in any way.

While passing the judgment, the Delhi High Court stated that it would be the responsibility of the Parliament to amend the law in order for it to be in line with both — its judgment and a very articulate recommendation of the 172nd Report of the Law Commission of India which suggested deletion of Section 377 from the Indian Penal Code while reviewing the country’s rape laws way back in the year 2000. Might I also add, back then, the same Commission Report also suggested replacing ‘rape’ with ‘sexual assault’ in order to make our rape laws gender neutral — a light that has dawned upon us only after more than a decade of such a forward looking recommendation.

Much celebrated, as the Amnesty International release of yesterday, December 11th points out, that even the Attorney General of India went to the extent of telling the Apex Court in March 2012, ‘The government of India does not find any error in the judgment of the High Court and accepts the correctness of the same. The introduction of Section 377 was not a reflection of the existing Indian values and traditions; rather it was imposed upon the Indian society by the colonisers due to their moral values.”

Speaking against the provision, even Bilal Nakzi, a Bombay High Court Judge had said in 2008 that Section 377 needed review. As did the 11th Planning Commission and even the National Commission for Women.

And even before this, in 2006, a noted Open Letter was sent to the Government of India, backed by the likes of Amartya Sen, Vikram Seth, Soli Sorabjee, Swami Agnivesh, Arundhati Roy, Barkha Dutt, Rajdeep Sardesai, Derek O’Brien, Urvashi Butalia, MJ Akbar, B.G. Verghese etc. stating that, “In the name of humanity and of our Constitution, this cruel and discriminatory law should be struck down.” Post this letter, Dr. Manmohan Singh had publicly suggested the need for greater tolerance towards homosexuals in Indian society.

Even the United Nations Human Rights Committee, a watcher of the International Covenant on Civil and Political Rights (one that has been adopted by India) had said that laws used to criminalise private, adult, consensual same-sex relations violate rights to privacy and non-discrimination. In fact, in a review of India’s Human Rights record before the UN Human Rights Council in 2012, the Government of India quoted the very same Delhi High Court judgment to signify its progress on human rights issues.

Coming to issues of health: In 2008, the then Union Minister for Health and Family Welfare, Anbumani Ramadoss (disliked by many for bringing into society many of the toughest anti-smoking practices till date) had said that when world over people were becoming more acceptable of homosexuals, why was India lagging behind? In his capacity as Health Minister, his argument was that decriminalising homosexual intercourse would assist the Government in forming suitable and sizable policies designed to prevent and cure HIV/AIDS via better targeting of vulnerable groups.

Ramadoss chose to view it as a helpful indicator, as opposed to the views held by the then Home Ministry & the then Additional Solicitor General, PP Malhotra who believed homosexuality to be ‘a social vice’, one that would breach the peace & morality of society & cause HIV/AIDS to spread further, affecting even more individuals.

As the Delhi High Court judgment lay in limbo for over four years, its fate dependant on Parliamentary action, it would be interesting to note that, between 2009 and 2013, the Lok Sabha (the 15th one) worked for only about 1329 hours as opposed to working 3700+ hours between 1952 and 1967. Only 23% of this time was spent debating legislation as opposed to 49% in the 1st Lok Sabha, and that only 162 Bills have been passed in the last four years — the least by any full term Lok Sabha. (Source: PRS Legislative Research)

At a time like this, when in this very period of four years, the efficiency of the Indian Parliament has been questioned time and again, and when up until recently the Judiciary had never shied away from exercising its powers (inaction by the Parliament has not acted as a deterrent for the Supreme Court whenever it came to expanding the scope of Fundamental Rights and individual liberty in general), it comes as a surprise that the Supreme Court suddenly decided to allow the theory of ‘separation of powers’ have its day & speak of ‘judicial restraint‘ (cited as reasons for setting aside the decriminalisation of Section 377).

As Advocate Dushyant Arora states, “Hitherto it was the Parliament which had been complaining of judicial overreach. What came as a bigger shock was apparent contempt for individual liberty and privacy. The court seems to have found it wise to set boundaries for what consenting adults regardless of their sexual orientation ought to be doing in the confines of their homes. It could be said without any hesitation of contradiction that the orifice of mouth is not, according to nature, meant for sexual or carnal intercourse — The factum of the LGBT forming a ‘miniscule part of the country’s population‘”, and cases of prosecution being few weighed in with the Apex Court. Not only is this line of reasoning heart breaking, it also sets a dangerous precedent. The Court seems to be saying that the rights of those who don’t form a significant part of the population of over a 1 Billion people are of no concern to the Supreme Court.

Analogically, a provision penalising the act of taking an early morning walk would stand so long as there were very few convictions, as such people in any case form a miniscule part of the total population.

In the online & offline protests that followed the judgment of the Supreme Court, while many politicians in the Government and in the Opposition made statements to varying effects, only the Lok Satta Party seemed to have taken a public stand — against the Supreme Court judgment and in support of the LGBT Community.

The Party said, “It is difficult to understand why the Supreme Court, which has the right to determine the constitutionality of any law, and has actively used this right to uphold India’s constitution and safeguard the civil liberties of India’s citizens, chose to take a passive approach in this particular case, and left the matter to a body which is more prone to acquiescing to the voices of certain fringe groups.

To India’s concerned citizens who are yet to make up their mind on this issue, we would like to point out that India ranks 38th in the world out of 167 countries according to the Economist’s Democracy Index for 2012, and is among the 28 best countries in the world in terms of civil liberties. Yet, India is among only 74 countries in the world, which have criminalised same-sex sexual activity, thus putting it behind countries such as Burkina Faso, Jordan, Nepal and Cambodia and among the most repressive and regressive regimes in the world in this regard.”

Karan Johar commemorated 100 years of Indian cinema by touching a very important chord in his quarter of Bombay Talkies: That irrespective of class, exposure to education etc. we are afraid to embrace what may come naturally to us because being shunned by the society we live in is not a situation any of us would like to face.

To ignore the domino effect of this tendency of our society and of us would be foolishness: It disrupts the possibility of having a truly equitable, inclusive and just society. It breeds discrimination as an accepted norm. It stems up crime & violence (sometimes even state inflicted) against the community. HIV/AIDS, suicides & the lack of the right to a civil union are other by-products of this tendency.

While the Legislature & the Judiciary of India are busy playing table tennis with the rights of the LGBT community, as a society we need to rise to the occasion & not pass the buck further — either pillar would grant them their rights but it would be incorrect if we ignored our duties. As history has shown, attaining human rights is never the end; it’s only a means, a beginning to attain something more.

What would be the way forward from here? Advocate Dushyant Arora says, “a Petition seeking review of the decision can be filed. However, courts rarely unsettle a decision. Moreover such a petition is filed before the same court and in this case would be filed before a court consisting of Justice Mukhopadhaya and another Judge chosen by the Chief Justice of India (Since Justice Singhvi has retired).

In the probable event of such a petition being dismissed, a ‘Curative Petition’ could also be filed, relief under which is again granted rarely. Anyone / everyone aggrieved can and must approach / petition their respective Member of Parliament and urge him/her to raise the matter in Parliament.

That however will be a long and hard battle.”

Too bad though, the Supreme Court missed its Balbir Pasha moment.

You must be to comment.
  1. anoushkatripz

    I salute you, for not only writing this, but for thinking of this. It’s very very well written. It’s one of the best I’ve come across so far. You’ve articulated your thoughts so well.
    I’m so angry at our country for being as heartless as it is become. It’s very disheartening to see a nation trying to hold back your feeling against a person of the same sex just because they think it’s against the ways of nature?

  2. Monika

    Amazingly written Deepa. Now I hope the Parliament does what they were elected to do- be the people’s voice

  3. Dushyant

    To use a cliche, this one has been written straight from the heart.

  4. Dushyant

    Small clarification, what I’ve said starts from “Hitherto it was the …” and ends with “in any case form a miniscule part of the total population.” – Dushyant Arora

More from Deepa Kumar

Similar Posts

By Vaivab

By Debarati Sen

By Prabhanu Kumar Das

Wondering what to write about?

Here are some topics to get you started

Share your details to download the report.









We promise not to spam or send irrelevant information.

Share your details to download the report.









We promise not to spam or send irrelevant information.

An ambassador and trained facilitator under Eco Femme (a social enterprise working towards menstrual health in south India), Sanjina is also an active member of the MHM Collective- India and Menstrual Health Alliance- India. She has conducted Menstrual Health sessions in multiple government schools adopted by Rotary District 3240 as part of their WinS project in rural Bengal. She has also delivered training of trainers on SRHR, gender, sexuality and Menstruation for Tomorrow’s Foundation, Vikramshila Education Resource Society, Nirdhan trust and Micro Finance, Tollygunj Women In Need, Paint It Red in Kolkata.

Now as an MH Fellow with YKA, she’s expanding her impressive scope of work further by launching a campaign to facilitate the process of ensuring better menstrual health and SRH services for women residing in correctional homes in West Bengal. The campaign will entail an independent study to take stalk of the present conditions of MHM in correctional homes across the state and use its findings to build public support and political will to take the necessary action.

Saurabh has been associated with YKA as a user and has consistently been writing on the issue MHM and its intersectionality with other issues in the society. Now as an MHM Fellow with YKA, he’s launched the Right to Period campaign, which aims to ensure proper execution of MHM guidelines in Delhi’s schools.

The long-term aim of the campaign is to develop an open culture where menstruation is not treated as a taboo. The campaign also seeks to hold the schools accountable for their responsibilities as an important component in the implementation of MHM policies by making adequate sanitation infrastructure and knowledge of MHM available in school premises.

Read more about his campaign.

Harshita is a psychologist and works to support people with mental health issues, particularly adolescents who are survivors of violence. Associated with the Azadi Foundation in UP, Harshita became an MHM Fellow with YKA, with the aim of promoting better menstrual health.

Her campaign #MeriMarzi aims to promote menstrual health and wellness, hygiene and facilities for female sex workers in UP. She says, “Knowledge about natural body processes is a very basic human right. And for individuals whose occupation is providing sexual services, it becomes even more important.”

Meri Marzi aims to ensure sensitised, non-discriminatory health workers for the needs of female sex workers in the Suraksha Clinics under the UPSACS (Uttar Pradesh State AIDS Control Society) program by creating more dialogues and garnering public support for the cause of sex workers’ menstrual rights. The campaign will also ensure interventions with sex workers to clear misconceptions around overall hygiene management to ensure that results flow both ways.

Read more about her campaign.

MH Fellow Sabna comes with significant experience working with a range of development issues. A co-founder of Project Sakhi Saheli, which aims to combat period poverty and break menstrual taboos, Sabna has, in the past, worked on the issue of menstruation in urban slums of Delhi with women and adolescent girls. She and her team also released MenstraBook, with menstrastories and organised Menstra Tlk in the Delhi School of Social Work to create more conversations on menstruation.

With YKA MHM Fellow Vineet, Sabna launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society. As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Read more about her campaign. 

A student from Delhi School of Social work, Vineet is a part of Project Sakhi Saheli, an initiative by the students of Delhi school of Social Work to create awareness on Menstrual Health and combat Period Poverty. Along with MHM Action Fellow Sabna, Vineet launched Menstratalk, a campaign that aims to put an end to period poverty and smash menstrual taboos in society.

As a start, the campaign aims to begin conversations on menstrual health with five hundred adolescents and youth in Delhi through offline platforms, and through this community mobilise support to create Period Friendly Institutions out of educational institutes in the city.

Find out more about the campaign here.

A native of Bhagalpur district – Bihar, Shalini Jha believes in equal rights for all genders and wants to work for a gender-equal and just society. In the past she’s had a year-long association as a community leader with Haiyya: Organise for Action’s Health Over Stigma campaign. She’s pursuing a Master’s in Literature with Ambedkar University, Delhi and as an MHM Fellow with YKA, recently launched ‘Project अल्हड़ (Alharh)’.

She says, “Bihar is ranked the lowest in India’s SDG Index 2019 for India. Hygienic and comfortable menstruation is a basic human right and sustainable development cannot be ensured if menstruators are deprived of their basic rights.” Project अल्हड़ (Alharh) aims to create a robust sensitised community in Bhagalpur to collectively spread awareness, break the taboo, debunk myths and initiate fearless conversations around menstruation. The campaign aims to reach at least 6000 adolescent girls from government and private schools in Baghalpur district in 2020.

Read more about the campaign here.

A psychologist and co-founder of a mental health NGO called Customize Cognition, Ritika forayed into the space of menstrual health and hygiene, sexual and reproductive healthcare and rights and gender equality as an MHM Fellow with YKA. She says, “The experience of working on MHM/SRHR and gender equality has been an enriching and eye-opening experience. I have learned what’s beneath the surface of the issue, be it awareness, lack of resources or disregard for trans men, who also menstruate.”

The Transmen-ses campaign aims to tackle the issue of silence and disregard for trans men’s menstruation needs, by mobilising gender sensitive health professionals and gender neutral restrooms in Lucknow.

Read more about the campaign here.

A Computer Science engineer by education, Nitisha started her career in the corporate sector, before realising she wanted to work in the development and social justice space. Since then, she has worked with Teach For India and Care India and is from the founding batch of Indian School of Development Management (ISDM), a one of its kind organisation creating leaders for the development sector through its experiential learning post graduate program.

As a Youth Ki Awaaz Menstrual Health Fellow, Nitisha has started Let’s Talk Period, a campaign to mobilise young people to switch to sustainable period products. She says, “80 lakh women in Delhi use non-biodegradable sanitary products, generate 3000 tonnes of menstrual waste, that takes 500-800 years to decompose; which in turn contributes to the health issues of all menstruators, increased burden of waste management on the city and harmful living environment for all citizens.

Let’s Talk Period aims to change this by

Find out more about her campaign here.

Share your details to download the report.









We promise not to spam or send irrelevant information.

A former Assistant Secretary with the Ministry of Women and Child Development in West Bengal for three months, Lakshmi Bhavya has been championing the cause of menstrual hygiene in her district. By associating herself with the Lalana Campaign, a holistic menstrual hygiene awareness campaign which is conducted by the Anahat NGO, Lakshmi has been slowly breaking taboos when it comes to periods and menstrual hygiene.

A Gender Rights Activist working with the tribal and marginalized communities in india, Srilekha is a PhD scholar working on understanding body and sexuality among tribal girls, to fill the gaps in research around indigenous women and their stories. Srilekha has worked extensively at the grassroots level with community based organisations, through several advocacy initiatives around Gender, Mental Health, Menstrual Hygiene and Sexual and Reproductive Health Rights (SRHR) for the indigenous in Jharkhand, over the last 6 years.

Srilekha has also contributed to sustainable livelihood projects and legal aid programs for survivors of sex trafficking. She has been conducting research based programs on maternal health, mental health, gender based violence, sex and sexuality. Her interest lies in conducting workshops for young people on life skills, feminism, gender and sexuality, trauma, resilience and interpersonal relationships.

A Guwahati-based college student pursuing her Masters in Tata Institute of Social Sciences, Bidisha started the #BleedwithDignity campaign on the technology platform Change.org, demanding that the Government of Assam install
biodegradable sanitary pad vending machines in all government schools across the state. Her petition on Change.org has already gathered support from over 90000 people and continues to grow.

Bidisha was selected in Change.org’s flagship program ‘She Creates Change’ having run successful online advocacy
campaigns, which were widely recognised. Through the #BleedwithDignity campaign; she organised and celebrated World Menstrual Hygiene Day, 2019 in Guwahati, Assam by hosting a wall mural by collaborating with local organisations. The initiative was widely covered by national and local media, and the mural was later inaugurated by the event’s chief guest Commissioner of Guwahati Municipal Corporation (GMC) Debeswar Malakar, IAS.

Sign up for the Youth Ki Awaaz Prime Ministerial Brief below