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.
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.