‘Miniscule Minority’... Supreme Court Recriminalises homosexuality

miniscule minority of unapprehended felons marches ahead in pride

Supreme Court judgement recriminalizes homosexuality in India

Newsletter Sept 2013 - Aug 2014

‘miniscule minority’ – how the learned Supreme Court described the entire LGBTQ population in its judgment of December 2013, arguing therefore that our rights were not worth protecting

‘unapprehended felons’– the current legal status of the LGBTQ population in India as per the newly reinstated Section 377 of the IPC

‘pride’ – not just an event, a day, but rather a way of life

Until the morning of 11th December 2013, the Supreme Court was still a place of hope as many of us waited outside Courtroom No.1 expecting the Court to uphold the Delhi High Court judgment of 2 July 2009 reading down the archaic Sec 377 of the Indian Penal Code.

There was no reason to believe that the Supreme Court (SC), the upholder of fundamental rights, would set aside the 2009 judgement and ‘roll back’ our rights. But in this unprecedented move, much to the disbelief and shock of countless queer citizens of this country, this is precisely what Justices Singhvi and Mukhopadhyay did: undid the gains of the last four years and recriminalised a vast population of consenting adults who don’t conform to heteronormative notions of sex and sexuality.

On the lawns of the Court that morning, next to the tent that was being readied for Justice Singhvi’s farewell (yes, THIS was his last day at work!), and later that afternoon at the Press Club in New Delhi, many of us addressed huge media gatherings expressing our disappointment with the judgment, while at the same time asserting our hope for the future because no matter what, the social transformations we have witnessed since 2009 cannot simply be rolled back!

This was articulated in a press release issued that day by Voices Against 377 (henceforth VA377, a platform of women’s groups, child rights groups, human rights groups and others, including Saheli), as well as Alternative Law Forum (Bangalore), Adhikaar (Delhi)and other co-petitioners including the parents of LGBT persons, mental health professionals, academics and law professors.

“We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. By re-criminalising LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru. It equally abandons the principle of constitutional morality (i.e. majorities don’t have a charter to discriminate against minorities purely because they are majorities) articulated by Dr. Ambedkar which is the cornerstone of a diverse and plural nation. The judgment is thus a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognised and that equal treatment is a non-negotiable element of the world’s largest democracy. In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.

This decision today along with the decisions upholding the emergency and legitimising rape marks the lowest ebb in the illustrious history of the Supreme Court. In 1975 in ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathura’s case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law. We proclaim that in spite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice. We pledge to continue this struggle with re-doubled vigour till such time that Section 377 is consigned to where it belongs- the dustbins of history.”

That evening, wearing black bands and waving rainbow flags, this ‘miniscule minority’ of LGBTQ people, and hundreds of allies and comrades gathered at Jantar Mantar to loudly proclaim through songs and speeches and slogans that ‘we are ALL queer’. Many other cities across the country also held protests that day.

As we combed through the judgment, we saw how the arguments, hidden under the façade of legalese, were riddled with Constitutional inconsistencies, as well asmisconceptions and biases of the judges regarding the community, and a deep sense of homophobia. (For a more detailed critique see http://tinyurl.com/n3jwobq).

Within weeks of the judgment, there were several community meetings in order to collectively figure what our next legal steps could be and also to create some spaces for us to come together in this time of great political loss. After all, it was not just about the judgment; it was (and is) about the immediate impact it would have on our lives (we are already seeing newspaper reports of incidents in Ajmer, Delhi, Bangalore, etc). Since 2009, countless queer people have proudly come out to their families, neighbours, co-workers and this changed context has certainly increased our vulnerability. It was important to meet in safe spaces to share our fears, to renew old solidarities and build new ones. These community meetings also included interventions by lawyers who demystified the nitty-gritty of what the judgment actually means for our lived realities. For instance, the judgment says that only sexual ‘acts against the order of nature’ are criminalised but sexual identities are not. Which of course means you can be gay, or lesbian or bisexual as long as you don’t act upon your sexuality! So pride marches and the buying power of the ‘pink rupee’ remain intact, as long as there isn’t any sex! Such a moralistic attitude opens all of us to blackmail, threats and violence.

On 22 December, LGBTQ groups from across India came to Delhi for the national strategy meeting jointly called by many individuals and groups including Naz Foundation, Lawyers Collective, Voices Against 377, Alternative Law Forum, Humsafar Trust and Sangama. This meeting was divided into two parts, the first decoding and critiquing the judgment as well as discussing the pros and cons of the next ‘obvious’ step of filing a review petition and the second part devoted to advocacy issues and community concerns.

Within a month, the judgement was challenged by the Government of India that filed a review petition, with 76 grounds to contend that the SC verdict is unconstitutional. Soon after Naz Foundation and VA377 also filed review petitions. At this point it is important to note that many political parties including the Indian National Congress, Aam Aadmi Party and the Communist Party of India (Marxist) came out with statements opposing the judgment but there was complete silence from the BJP.

While seeking a review of the judgment and open court hearings for the proceedings, as well as a stay of the Supreme Court judgment, the VA377 review petition broadly made the following two arguments: (i) that this is about dignity and equality before anything else and should be decided on those grounds alone and that it must be the Court’s role to do so; and (ii) the fact that a number of affidavits showing the active use of 377 for torture, harassment and blackmail that were filed by VA377 in the Delhi HC were erroneously ignored by the SC who claimed that no such evidence had been provided. We also reinforced other parties’ arguments on misrepresenting the position of the State, not considering arguments under Articles 14, 15, 19 and 21 of the Constitution as was done by the High Court, arguments for the rights of ‘minuscule minorities’ and so on.

Simultaneously we were also busy occupying the streets of our respective cities; distributing leaflets, lighting candles and loudly proclaiming that ‘We are here. We are queer’.

Working day and night, hundreds of queer people organised the “Global Day of Rage” on 15 December 2013 in 24 cities across the world: Ahmedabad, Ann Arbor, Berlin, Boston, Cambridge, Chennai, Delhi, Gorakhpur, Hamburg, Johannesburg, Kolkata, London, Lucknow, Mangalore, Mumbai, Mysore, New York, Pune, Richmond, Sangli, Sydney, Toronto, Vancouver and Washington DC. The message all over the globe was loud and clear – NO GOING BACK!

In Delhi, the event was attended by thousands of queer people, our families, friends, allies cutting across movements was marked with rage, with humour, with dance, poetry and fiery speeches. The ‘unapprehended felons’ will not be silenced!

Some excerpts from leaflet of the Global Day of Rage stating why we are outraged:

- That the Supreme Court has betrayed its own progressive history of extending rights for all by taking away rights from Indian citizens with this judgment.

- That the Supreme Court has failed to live up to its role as the protector of rights for all citizens without discrimination, as guaranteed by Constitution.

- That the Supreme Court has thus betrayed the fundamental constitutional promise that the dignity of all citizens would be recognised and that equal treatment is a non-negotiable element of the world’s largest democracy, thereby shredding the very principles it has sworn itself to uphold.

- That the Supreme Court has empowered blackmailers, bullies and homophobes who will now find easy victims in LGBT people whose rights have been denied.

- That the Supreme Court can use the phrase ‘miniscule minorities’ to dismiss the rights of LGBT people, thus ignoring the spirit of inclusiveness which is at the heart of the Indian Constitution. The size of a minority is irrelevant, what matters is that every member of it, every Indian citizen has an equal right to protection granted by our Fundamental Rights and it is the SC’s duty to enforce this, not throw it away.

On 11th January 2014, we marked one month of the judgment by distributing leaflets in Connaught Place, in the metro stations and after several hours we gathered atop the park on Palika parking. Once there we sat and wrote postcards to the SC as part of a nation-wide campaign to tell the Court that we are queer citizens of this country and how the actions of the Court have impacted us (Check this link to read the amazing variety of letters and postcards from all over the country. http://377letters.orinam.net/)

One month later, the sense of anger and dejection at being treated as non-citizens, as criminals, continued to gnaw at us. With the prospect of Republic Day and its mainstream assertions of weapons, uniforms and marching boots looming upon us, we decided that this year, of all years, called for a coming together of people bearing the brunt of all kinds of marginalisations. This gave birth to ‘We the People: Reclaim the Republic’, a programme organised and endorsed by numerous groups. See complete text of leaflet for the articulation of this collective voice in the Box that starts alongside.

In another development, the SC on 28 January dismissed all the review petitions in under half an hour. But this was seen as a temporary setback as is evident from the excerpts of this statement that was issued soon after and read at a protest that evening in Jantar Mantar, New Delhi.

“Regardless of the decision of the Court, our activism asserting the right to live without fear and discrimination, and indeed to live with pride, will remain undimmed. If anything, we are strengthened and heartened by the wide range of support we have seen and felt. The media, mainstream political parties, ordinary persons, families of LGBTQ persons, mental health professionals, teachers, academics, artists have all stood with us in favour of the constitutional guarantee of dignity to the LGBTQ community.

Going forward, we will continue to wage the legal battle against Section 377 as there is an urgent and compelling case for the law to go. We will pursue all legal options, including curative petitions, to again assert that the Court has made an egregious error in this case by denying the right to equality and dignity to a section of the population. The history of struggle against anti-sodomy laws worldwide teaches us that, sooner or later, unjust laws are defeated even as the battles may be long.”

A powerful testament to this sentiment is the first ever pride marches organised in the North-East; Guwahati on 9 February, followed by Imphal on 15 March, 2014! In terms of the next legal steps, we decided to file a Curative Petition. To file a curative means that we are actually asking the Court to ‘cure’ its own judgement. Curatives were a mechanism evolved by the Court in 2002 for aggrieved parties to apply for relief after dismissal of a review petition. While the UPA Government, in its infinite wisdom, decided to not file a curative, both Naz and VA377 filed one each, even though the hope of receiving a reversal was a statistical rarity (since 2002, only two curatives have been admitted by the Court).

Days after this, in early April, a bench headed by (now former) Chief Justice Sathasivam considered hearing the curative petition; this was indeed good news after a series of legal defeats and we eagerly wait to hear back from the Court. The month of April brought another piece of good news in the form of the National Legal Services Authority (NALSA) judgement – a historic move in which the SC Justices Radhakrishnan and Sikri recognised the legal and Constitutional rights of transgender persons, including the rights of the Hijra community as the third gender. Clearly, the fight at the level of courts will continue and so will our protests and celebrations. Because there is truly no going back. The invitation of the 2 July event organised by the Delhi Queer Pride Committee celebrating the 5th anniversary of the High Court judgement, rightly evoked these words as something we will continue to derive courage, succour and inspiration from:

“If there is one constitutional tenet that can be said to be the underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non-discrimination.”

-Delhi High Court Judgement on Section 377, 2009

Box 1

SAHELI speaks out against The Supreme Court judgment

Within days of the judgement, statements were issued by numerous organisations including Amnesty, United Nations High Commissioner for Human Rights, Blue Diamond Society (Nepal), Human Rights Watch, National Human Rights Commission of India, PUCL, PUDR, TISS teachers, International Gay and Lesbian Human Rights Commission, IITs against Section 377 etc. Saheli also issued a statement on 14.12.2013, reproduced below:

The Supreme Court has Failed LGTBQ Citizens.

We at Saheli express our outrage at the recent Supreme Court Judgment upholding IPC Section 377, which effectively criminalises same-sex relations between consenting adults. This move can only be seen as taking several steps backwards, as it effectively takes away rights from LGBTQ citizens and enables further discrimination and violence against a community which is already marginalised.

Section 377 imposes a patriarchal and heteronormative conception of relationships, criminalising all those who fall outside this norm. The Supreme Court’s assertion that Section 377 is consistent with the Indian Constitution is as absurd as it is false. An outdated and regressive piece of legislation, it violates the constitutional rights to equality, liberty and privacy to which every citizen is entitled. With this judgement, the Supreme Court has failed to realise its function to protect the fundamental rights of all persons, regardless of gender, religion, caste, class or sexual orientation. In that sense, it takes away from all citizens the right to choose one’s own partner and to choose who one loves. Where the Delhi High Court judgment of 2009 progressively invoked the Constitution in order to assure LGBTQ citizens of these rights, the recent judgment has, shockingly, revoked them.

In doing so, the Supreme Court has abrogated its responsibility towards the LGBTQ community by arguing that the rights of a minority may be ignored precisely because they are a minority. This presents a disturbing trend, especially in a nation as large and diverse as ours. It is precisely because of laws like this and the social attitudes they promote that LGBTQ citizens are forced into invisibility, making them appear even more to be a ‘minority’.

As feminists we strongly stand for the rights of all people over their own bodies, gender identities and sexualities. Such a judgment validates the attempts of conservative forces to police the bodily and sexual autonomy of others. There is a need to persistently challenge these forces, in order to protect the rights of marginalised communities and people.

We stand with the demand to uphold the High Court judgment against Section 377, with the view that all people, regardless of who they are, have the right to live with freedom, dignity and safety, and the assurance of the complete range of rights ensured to every citizen by the Indian Constitution.

Box 2

BABA RAMDEV, O’ BABA RAMDEV

Zara pare hat, hawa aane de!

Roz subha Aastha channel par

Apna paet lehrate ho

Apni hee hul main rahkar

Kya kya bakte jate ho

Pranayaam se thik karogey

Hamari ‘gandi aadat’ ko?

Hamari aadaton ko lekar

Kyun apna dil jalate ho?

Ramdev, zara dhaerye se socho

Thoda baith ke, thoda laet ke

Zara apna thuloo samet ke

Aur nikalo apni daarhi se zzoon

Hum jo hain vo hain, main jo hoon vo hoon.

                                                                                           Akhil Katyal, 15 December, 2013

Box 3

We the People , Reclaim the Republic

A Republic Day March ‘Of the People, By the people, For the people’

January 26, 2014, New Delhi

“What are we having this liberty for? We are having this liberty in order to reform our social system, which is full of inequality, discrimination and other things, which conflict with our fundamental rights.”- B.R. Ambedkar

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation.”

- Preamble to the Constitution of India

Republic Day marks the adoption of the Constitution of India, the end of colonial rule, and the creating of an independent Indian nation. Yet sixty four years later, where do we stand?

The promises of our Constitution – of justice, liberty, equality, and fraternity – remain distant. As citizens, we cannot forget that the rights of the marginalised in our society continue to be gravely violated, as too many continue to face violence, discrimination and stigma due to their gender, sexual, caste, class, ability, racial, regional, and religious identities. The three arms of government — the legislature, the executive, and the judiciary — have failed their Constitutional duty to protect and advance our rights and include every citizen in the promise of freedom from inequality.

Rejecting the spectacle of the parade of weapons, this year we declare an alternative agenda for the people’s republic. We do so because recent and on-going blatant violations of Constitutional Rights have made us all hang our heads in shame: the re-criminalisation of homosexuality by the judiciary through Sec 377 IPC; the failure of the executive to introduce suitable amendments into as yet untabled Disability Rights Bill, 2013; the continuing presence of the Armed Forces Special Powers Act (AFSPA); the active use of Unlawful Activities (Prevention) Act (UAPA) and sedition laws; the apathy of the state in the face of deepening caste and religious violence; the inadequacies of the Criminal Law Amendment Bill 2013 to address violence against women, among many others.

Today, as citizens and people’s movements, we stand here together to show that our exclusions are deeply inter-connected as are our struggles against them. We stand together against the active denial of basic rights to LGBTQ persons and people with disabilities just as we refuse the pervasive violence against women in all spheres of life and deepening caste based discrimination and violence. We pledge continuing resistance to moral policing just as we join the struggles of all workers from individual domestic workers, to sex workers, and to collectives of workers employed by large corporations.

We name and protest the forcible eviction of farmers, indigenous people and urban poor communities from their land with its consequent environmental fallout and devastating impact on livelihoods. We are aware of how corporate interests direct the violence of copyright and patent laws on students and the severely ill, compromising their rights to education and health. We bear witness to governments that unleash the violence of its armed forces upon its own citizens, while enacting and upholding laws that make the executive unaccountable to the legislature, the judiciary or to its citizens. We argue that more violence cannot be the answer: either in the form of the death penalty, or the surveillance, torture and killing justified in the name of ‘national security.’ We fear and resist the advent of fascist, fundamentalist forces that may claim to represent the people of this country by manipulating the processes of electoral politics.

As members of the LGBT community, women, workers, sex workers, students, teachers, activists, persons with disabilities, health rights activists, Dalits, indigenous people, farmers, those affected by unconstitutional military rule, we are united not as “minorities” or “others,” but as the people. We invoke the promises of the Constitution of India in our name. Our struggle will continue until all arms of the state are unwavering in their constitutional promises towards the marginalised in our society, rather than only representing the powerful.

As we commemorate another Republic Day, We The People proclaim that the parade of the powerful at Rajpath does not represent us. We The People, Reclaim our Republic.

The Agendas of the People’s Republic (a work in progress)

Gender, Sexuality and Violence

• Repeal Section 377 of the IPC and other laws on sexual or gender identity, obscenity, or public nuisance that render people vulnerable because of their sexual orientation or gender identity

• Address extra-legal violence in private and public on the basis of gender, caste, and faith

• Address urgent lacunae in the laws on sexual violence to include violence against transgender people and men, penalise marital rape and remove impunity for the Army

• Work across institutions to make private and public spaces safe for women

• Recognise organised violence against minority communities and strengthen their claims to justice by passing the Communal Violence Bill.

• Abolish the Death Penalty

• Amend the Special Marriage Act to remove notification to homes and police stations.

• Opening homes for protection for inter-faith and inter-caste couples in need

Non-Discrimination

• Pass comprehensive Non-discrimination legislation that prevents discrimination between citizens and private actors, institutions and within the family.

• Mainstream people with disabilities – inclusion is non-negotiable!

• Mandate and encourage making private and public spaces accessible for people with disabilities

State Violence and Power

• Repeal the Armed Forces Special Powers Act (AFSPA) and end military rule

• Repeal UAPA and Sedition Laws used to target citizens and political activists

• Repeal the Prevention of Torture Bill and introduce new legislation in line with Convention against Torture

• Implement police reforms to make the police forces accountable

Transparency and Accountability

• Protect and strengthen RTI by enacting an effective whistle-blower protection law immediately and activating Information Commissions

• Enact proposed legislations on accountability: Grievance Redress Bill, Judicial Accountability Bill must be passed

• Grievance Redressal Centres must be set up at panchayat and ward levels.

• Establish and require institutionalised social audits for every public scheme, and create a separate agency for the same.

• Safe drinking water & sanitation in every household

Economic Development and Social Security

• Strengthen people’s control over their own development and stop evictions, land grabs and appropriations of natural resources

• Universalise social security pensions with exclusions for the non-poor, increase the pension amount to Rs. 2000 or half the minimum wage and link all social security pensions to inflation, to be revised regularly.

• Expand and protect fair use within copyright and patent regimes to ensure access to generic medicines as well as educational materials.

• Revise minimum wage indexes for National Rural Employment Guarantee Act (NREGA) and extend livelihood guarantee to urban areas and workers

• Expand provisions and effectively implement the Unorganised Workers Social Security Act 2008

• Land to every landless family, specially Dalit and adivasi women

• Considering the massive expansion of the private sector to the tune of almost 75% of India’s economy, it is necessary that the constitutional mechanism of reservation in private sector be legislated and enforced.

Organised by: Voices Against 377, AIDWA, AIPWA, AISA, All India Dalit Mahila Adhikar Manch (AIDMAM), Anhad, Anjuman, Breakthrough, Citizen’s Collective against Sexual Assault (CCSA), CREA, Delhi Queer Pride Committee, Dhanak, duqueercollective, Haq: Centre for Child Rights, Jagori, Jamia Teacher’s Solidarity Association (JTSA), JNUSU, Mazdoor Kisan Shakti Sangathan (MKSS), Must Bol, Naz Foundation (India) Trust, National Alliance of People’s Movements (NAPM), National Campaign for Peoples’ Right to Information (NCPRI), Nigah, Nirantar, Partners for Law in Development (PLD), Pension Parishad, People’s Union for Civil Liberties (PUCL), PUDR, Prism, Saheli, Sama, SAMARTHYAM National Centre for Accessible Environments, Talking About Reproductive and Sexual Health Issues (TARSHI), Women Against Sexual Violence and State Repression, Women With Disabilities India Network, Youth Ki Awaaz, The YP Foundation and many individuals from diverse movements.