Posts Tagged ‘ homosexuality ’

The summary of the Supreme Court of India’s judgment of homosexual and transgender Indians

On 11th December 2013, the Supreme Court bench comprising of Justice G. S. Singhvi and Justice S. J. Mukhopadhyay delivered a regressive verdict on the subject of constitutionality of S. 377 of the Indian Penal Code, 1860 by upholding its validity, which criminalizes consensual, adult sexual relations between persons of the same sex. The Supreme Court pronounced its verdict after 21 months, in appeal against the Delhi HC’s 2009 judgment in NAZ Foundation v. Government of NCT & Ors., which famously confirmed the constitutionally-protected rights of LGBT Indians and developed an entire realm of jurisprudence on subjects of minority rights, individual liberty, Constitutional morality, privacy, the State’s burden in satisfying a compelling interest for abridgment of life and liberty, substantive due process and Equality.

To appreciate the Court’s opinion, we shall look at all the subjects explored by it in the following parts:

I)                   Scope of Judicial Review(Pages 46-62):

While the Supreme Court recognizes that it is vested with unqualified and absolute authority to declare a law to be unconstitutional, it puts forward the argument of judicial restraint in deference of the principle of separation of powers to tread cautiously in this case. This is all the more disturbing since the Courts have consistently demonstrated judicial activism in an unbridled trend to protect and promote fundamental rights in relation to the environment, expanding the access to justice, human dignity, employment, hunger, education and reproductive rights, amongst others. The Court cites precedents which precisely give credence to NAZ’s arguments in favour of reading down S. 377 to exclude consensual, sexual relations between same sex persons when it recognizes that changing times and progressive, social mores illuminate later generations to the oppressive nature of our past laws (Anuj Garg, 2008), while confounding the public by not disclosing its reasons for disregarding such compelling arguments.

II)                Analysis on S. 377, IPC 1860 (Pages 62-77):

While the Court opined that it has merely expressed its view on the legal validity of the judgment of the Delhi HC in 2009, and not on the constitutional validity of S. 377 per se, the materials referred to in arriving at such opinion reveals the Court’s homophobia and transphobia, and how it has translated into the verdict in a disingenuous manner. For the purposes of demystifying the legislative history of S. 377, the Court relies on 2 provision of the penal code, one of them on rape (S. 375) and the other being S. 377 for no apparent reason, thus conflating the nature of homosexual and transgender sexual relations with rape. This notion is further exacerbated with extensive reference to precedents on S. 377 from the late 19th to early 20th century, which characterize all same-sex sexual relations as violent and “deviant/perverse”, reinforcing fear and loathing against sexual minorities.

The Court’s selective research on the subject overlooks important materials which also inform the social, cultural and legislative history of S. 377, which were held in great regard by the Delhi HC. The Wolfenden Committee Report, 1957 in Britain lead to the abolition of anti-sodomy law in 1967; an integral historical event that the Supreme Court of India couldn’t have inadvertently overlooked but for its apathy towards sexual minorities, given the Victorian-era origin of S. 377. The 172nd Report of the Law Commission of India (2000) recommended deletion of S. 377 on the precise understanding that it operates to persecute sexual minorities.

By its own admission, the Court expresses that “it is difficult to prepare a list of acts which would be covered by the section”, and nevertheless holds that S. 377 would apply “irrespective of age and consent”. Importantly, it states that S. 377 “does not criminalize a particular people or identity or orientation”, rather punishes certain acts (penile non-vaginal sex). S. 377 returns back in greater rigour as not only does it disregard age and consent of persons engaged in sexual relations, but also applies to heterosexual couples now, which renders all persons at risk of prosecution or harassment by their neighbours and police on suspicion of partaking in “carnal intercourse against the order of nature”.

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Hijra activist Laxmi Narayan Tripathi at the Jantar Mantar protests against Supreme Court’s 377 verdict

III)              Apparent deficiency of evidence for Constitutional challenge (Pages 77-79):

The Court expressed skepticism on the authority of the Delhi HC in entertaining the challenge to S. 377 by NAZ Foundation, which issue, in fact, is already settled by the Supreme Court order in 2006 which remanded the matter back to the Delhi HC for “serious considerations”.

On the issue of insufficiency of materials on record to illustrate the patent unconstitutionality of S. 377 in targeting homosexual and transgender persons, the Court simply overlooks all the materials appreciated by the Delhi HC in terms of academic studies, surveys, reports, international jurisprudence and personal affidavits from LGBTI community members and healthcare experts that bore testimony to the personal struggles of the people by bringing to light the violence, stigma, discrimination and harassment faced by the community, dispossession by families and societies, sexuality, mental health concerns for persecuted individuals et cetera. The Court also entirely disregarded the data on health presented by NACO, which emphasized on the dire needs for access to healthcare services for sexual minorities, and the success achieved over the years in reducing the prevalence of HIV as a result of advocating an integrationist policy. It maintains a conspiracy of silence on the times and climate around which the original petition came to be filed by NAZ, when organizations working on healthcare for sexual minorities were hounded by the police, and directly contributes to the silencing of material on record presented by the Respondents.

IV)              Article 14 (Equality and Equal Treatment) and Article 15 (Freedom from discrimination) (Pages 79-85):

The judgment does a great disservice to the institution of the Supreme Court and the relevance of the debate on S. 377 by merely explaining away the intelligible differentia in S. 377 as “carnal intercourse in the ordinary course and carnal intercourse against the order of nature” as constituting different classes. The reasonable nexus between such classification of sexual activity with the object sought to be achieved by the penal statute is again explained away merely as ‘crime and punishment’, in that it seeks to criminalize carnal intercourse against the order of nature, regardless of the fact that the comprehension of such sexual activity is riddled with patent ambiguity and arbitrariness.

Again, recognizing the boundless sea of uncertainty and the probability of misuse of law to the detriment of an individual which has impelled the Court in the past to strike down a law or read it down (K.A. Abbas, 1970), especially in light of the Court’s own observation in this case where it characterizes S. 377 as difficult to construe due to its heavy reliance on the circumstances of a case, the Court simply rules against a violation on grounds of Article 14 without precise reasons. An entire repository of jurisprudence on Article 15 argued by NAZ and expounded affirmatively by the Delhi HC is conspicuous by its absence, which in the least affirms the opinion that the Delhi HC’s observation on sexual orientation as an analogous concept to sex under Article 15 still stands.

Pertinent to note is the Court’s characterization of the queer community in vague terms such as a ‘miniscule fraction’ of the population, shrewdly avoiding using the clearest and legal term as is appropriate in cases where dominant-group interests conflict with individuals or secondary groups: minority. The Court does not once express recognition of LGBTI persons as a ‘minority’, clearly avoiding the trigger of minority-rights jurisprudence well expounded in NAZ (2009) and Anuj Garg (2007). The verdict and the Supreme Court stand as morally and intellectually dishonest in this light.

V)                Article 21 (Right to Life and Liberty) & International Jurisprudence (Pages 85-97):

The Court recognizes that substantive due process has been read into Article 21 of the Constitution by way of Maneka Gandhi, which mandates that the State shall satisfy its burden of demonstrating a compelling State-interest before it can invade into and curtail individual rights, but despite this observation the Court fails to recognize that criminalization of ‘penile non-vaginal sex’ serves no compelling State-interest and is in violation of the right to due process of law.

The Court also makes disturbing remarks about disregarding foreign jurisprudence for applicability in India when it came to appreciating international developments on LGBTI-rights, ignoring that the fundamental Right to Privacy has been culled out from reading foreign jurisprudence into Article 21 of the Constitution of India, right from Kharak Singh (1964), Gobind (1975), Maneka Gandhi (1978) and upto Selvi (2010). The Court’s duplicity is illustrated by its attempt to co-opt the large body of Indian jurisprudence developed to serve human rights of all persons, by emphasizing adverse observations disproportionately to defend its position on S. 377. This is evidenced by clear non-application of judicial thought to Gobind which affirmed that the privacy of the home is sought to be protected by State-intrusion to allow individuals their freedom of expression, howsoever diverse they maybe, which is appropriately applicable to sexual minorities.

The Court defends S. 377 on the grounds that the legislative intent doesn’t sanction persecution of LGBT persons, and misuse by law enforcement agencies does not invite any challenge to the constitutionality of the law itself. This analysis is in direct violation of the Supreme Courts’ own observation in R.C. Cooper (1970) which held that regardless of legislative intent (criminalization of penile non-vaginal sex), if a law directly and inevitably has an adverse effect on a domain it does not intend to regulate (sexual orientation, privacy, public health), the law must be struck down as violative of the Constitution for abridgment of fundamental rights.

Article 21 of the Constitution has been consistently read affirmatively to privilege and expand on the idea of liberty, not its curtailment. Fundamentally, the Court errs in forsaking its duty to protect fundamental rights of its people by creating a wall of hyper-technicality, isolating itself further from the people it is meant to protect and serve.

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Fear and Loathing in Hindustan

Joseph Lelyveld, an ex-NYT Editor, has attracted a lot of flak recently from various quarters of the Indian society(correction: the Hindu Fundamentalist society), for a book he recently authored on Mohandas K Gandhi. Lelyveld’s book is the result of pouring over extensive records of correspondences that Gandhi exchanged with his friends staying in South Africa and Germany after he returned to India in 1914. His controversial find? That Gandhi might have had too much of a soft-corner for his German friend, Hermann Kallenbach, as the careful reading of the letters suggest, Gandhi was gay…at most, bi-sexual!

This is tantamount to blasphemy according to Indian standards. Very sadly, when it comes to unflinching, political commentary on national leaders in India, there is a silent code of self-censorship that a great majority of us exercise, all ingrained by overt acts of violence, threats and divine displeasure that is directed at outspoken citizens by politicians. The Congress as well as the BJP are deft at creating demi-gods of their senior leaders; and once the mythological heroes have mounted the tree-stumps, they develop a protective sheath around them, that manifests itself either in the form of swashbuckling, saffron-decked fanatics who swear by the BJP’s ideology of a Hindutva nationalism of a by-gone era, or a coterie of Ivy League-educated lawyers and managers who spew jargon to confuse and threaten the Indian electorate while keeping it content with the ‘prospects of a globalized world’ . Of course, then there’s those of us who choose to monitor ourselves, despite being better-off than the vulnerable majority, for no other reason than utter lack of moral courage.

Several people from the sports and entertainment industry, apart from the political class, have chosen to speak out on Lelyveld’s attempt to ‘besmirch’ the Mahatma’s reputation. Let us reserve our commentary here to the responses of three primary ‘persons of interest’, if I may, to the issue at hand here, and really try to analyze the problem.

Person of interest – Narendra Modi, Chief Minister of the State of Gujrat

In Gandhi’s birthplace, which once held the promise to be the cradle of many ideas of an independent India, ideas which now seem to be relegated to the proverbial dustbin, Narendra Modi was quick to retaliate the very next day the book was announced in the Indian media. Modi spoke of how ‘saddened’ he was to watch somebody ‘humiliate’ a world icon who influenced people globally in the better hope of a peaceful world. As a self-appointed custodian of Indian values, Modi launched into his rhetoric of how Lelyveld had ‘offended’ Indian sentiments by ‘defaming’ an international icon. He then threatened on pursuing legal action against Lelyveld for ‘defamation’. Next step, he maneuvered his State machinery to ban the sale, distribution, publication and broadcast of the book, and even lobbied with the Union Law Minister Veerappa Moily on proposing a country-wide ban on the book, which shockingly, the Minister connived to. Modi’s famous for being a prompt decision-maker and tough administrator – like in 2002 when he and his friends from the BJP led a murderous mob in Godhra and committed  genocide against Muslims.

Person of interest – Manvendra Singh Gohil, openly-gay member of the royal family of former Princely State of Rajpipla

Manvendra’s ordeal of coming to terms with his own homosexuality and finally coming out to his family in his 40s is something that obviously made him speak up in this case, though not necessarily in its favour. He’s well-known for his contributions to the LGBT community in India; he established the Lakshya Trust in Gujrat which educates people of the LGBT community on HIV/AIDS, and has already added a hospice centre which caters to senior citizens globally. As India’s second-most famous openly-gay personality after Ashok Row Kavi, Manvendra spoke up against ‘irresponsible practices’ in journalism and how one needs to be ‘delicate’ when dealing with history while he also invoked that shaky bogey that is ‘public sentiments’.

Peeling the Onion – We couldn’t have asked for two better people for commenting on this ‘burning issue’, one diametrically opposite from the other, for reasons of morality, of course, and yet there is a disturbing conformity to their reactions.

I have a problem with the way this entire episode has shaped up for either ulterior reasons, or much less, with much greater prejudices and bigotry under the surface. What is Modi really saying when he ‘defends’ Gandhi against Lelyveld’s imputation of homosexuality to him? What is Manvendra being apologetic for when he begs writers to be more careful with history, lest they offend public morality? Is everyone missing the obvious here, that at the most Lelyveld could be guilty of perversion of history if his research proves to be less than authentic? Or are they? This collective-hurt of the majority of the society on ‘defaming’ Gandhi; what does it really say about us?

Allow me to quote from one of the best pop-culture references that is the film Philadelphia, where Joe Miller defends his client Andrew Beckett against a wrongful dismissal for being homosexual –

“Because this case is not just about AIDS, is it? So lets talk about what this case is really all about: the general public’s hatred, our loathing, our fear of homosexuals, and how that climate of hatred and fear translated into the firing of this particular homosexual”.

So the AIDS is the notion of a gay Gandhi in this story. How great is that?

The Delhi High Court’s judgment in the matter of Naz Foundation v. Govt. of NCT of Delhi & Ors. in 2009 as it read down a part of S. 377 of the Indian Penal Code that formerly criminalized consensual acts of sodomy between men, thus outlawing homosexuality, was a landmark judgement that spelled an evolution in India’s progress towards protecting individual freedoms and liberties. More importantly, what Chief Justice A P Shah and Justice S Muralidhar need to be celebrated for is their pronouncement that homosexuality is not a physical or psychological aberration, but in fact a natural expression of an alternative sexuality, and it was finally time to rid the  homosexual community of the notion of being unapprehended criminals and proudly embrace their identities. The Judiciary finally reconciled with the boastful history of sex in India as is depicted at the Khajuraho Temples. Hell, if the highly graphic erotica at Khajuraho is anything to go by, the Delhi bench would have to read down the entire S. 377, which currently forbids buggery and bestiality.

The point is, it has been two great years since another weight of guilt has been lifted from India’s collective conscience, but discriminatory sexual-profiling is still rampant. Consider the case of the Aligarh Muslim University Professor Shrinivas Ramchandra Siras. Siras was expelled in February 2010 because a group students on campus unlawfully recorded him having consensual sex with another man and showed it to the authorities at AMU. Having consensual sex in the confines of your own apartment apparently is a shocking scandal that no institute of great repute can tolerate, that merited Siras’ expulsion. It gets worse. The media kept reporting that Siras was with an auto-rickshaw puller when he was caught in the act. I’m not sure if it is the media or the AMU that chose this narrative, but it reeks of fascist classism. How does it matter if Siras was in bed with an auto-rickshaw puller or the Dean of AMU?  Siras died two months after the incident. Unlawful gross breach of privacy, discriminating on the basis of sexual orientation and classist – looks like the AMU has blood on it’s hands.

"I spent two decades here. I love my university. I have always loved it and will continue to do so no matter what. But i wonder if they have stopped loving me because i am gay."

If Modi considers himself to be a guardian of Indian morality, he is sadly very delusional. He must not confuse his electoral victories as the the electorate’s declaration of him as a great leader. Sure enough, he’s turned around the developmental scene in Gujrat – revenue for the state by roping in big corporate, employment and an endorsement by Amitabh Bachchan(a big-time sell-out…very, very shameful!) – but does that compensate for all the gross abuse of human rights that his government is responsible for? He’s even barred from travelling to USA and Canada, in recognition of his roles in inciting riots and genocide against Muslims. But the US is contemplating a classic turn-around on this commitment as Modi is projected to be the next Prime Ministerial candidate by the BJP, and claims of an industrial revolution in Gujrat are having a Pavlovian-effect on Washington.

Truth is, against all likelihood of gay rights soon being recognized all over India, it drove a stake of fear right through Modi’s heterosexual-supremacist heart in coming to terms with the fact that soon he would have free men who love men walking unabashedly on the streets of Gujrat…unless he created an atmosphere of hatred and intolerance to send out a message, the message being that to be even considered gay, is a slap on the face, an abomination, a disgrace, a disrepute – hence the smooth transition from perversion of history to defamation in attacking not just Lelyveld’s book, but homosexuals as well. Modi’s words and actions are outright un-Constitutional, in that they’re violative of the freedom of speech and expression and the right to life.

I am also surprised at Manvendra’s timid reaction. Notwithstanding his contribution to the LGBT community and appearing on Oprah, I expected him to be the first one to point out the utter irrelevancy of the issue of defamation in this case, as anyone who brings defamation and homosexuality together is suggesting that homosexuality is a debasement, a lowering of reputation, something disgusting or something that shocks the conscience of society – all of which has been ruled against in the Delhi HC’s 2009 judgement, wherein it upholds homosexuality just as natural as heterosexuality. Where’s your gay-pride, Manvendra?

Person of interest – Tushar Gandhi, Founder of the Mahatma Gandhi Foundation, Grandson of M  K Gandhi

Tushar Gandhi has lived up to the reputation of belonging to a lineage that chooses swaraj over slavery, be it from the colonialism of the British, or the corrupted ideologies that Indian leaders now promote. I applaud him for reacting to the situation with the dignity and intelligence that we beg for in our national leaders, when he said ‘How does it matter whether Bapu was straight, gay or bi-sexual? Each time he would still be the same man who led India towards freedom‘.

Think about it – Would Leonardo da Vinci’s art be anymore/less beautiful had he been heterosexual? Would Elton John’s music be anymore/less wonderful had he been heterosexual? Would Edward Norton’s movies be anymore/lesser great had he been homosexual? Would Noam Chomsky’s political commentary be anymore/less thought-provoking had he been homosexual? Would Tina Fey be anymore/less funny had she been homosexual? Would Gandhi’s ideas be anymore/less revolutionary had he been homosexual?

Even as sixteen year old sexually frustrated teens, when we watched Richard Attenborough’s Gandhi as part of our history lessons at school, for all his talk on civil disobedience and self-rule, we sniggered everytime Gandhi appeared semi-naked in the company of his female devotees…even worse, sleeping with some of them in the same bed to test his avowed celibacy. We told ourselves, ‘This is why you want to become great, so that one day you can fool them into sleeping with you under the pretenses of attempting to unlock some hidden human potential’. Let’s presume without admitting that Gandhi whored around with these women. Obviously that doesn’t make him the best husband in the world, but failing that, does he automatically also fail the test of a humanitarian who pushed the boundaries of peace like no one had attempted before? In effect, are character and chastity mutually exclusive ideas? It also brings up one of my favourite unresolved topics – Do great humanitarians make great humans themselves? (just by the way, the not so great part about Gandhi that i’m talking of refers to his difficult relationship with his wife, Kasturba, not his ambiguous sexuality)

Modi’s initial reaction, which might’ve well been shared by a vast majority, was that of ghastliness as he tried to make semblance of the book that dared to ‘disrobe’ a great figure; one who inspired many by demonstrating that peace can have an audience too. Let us try and imagine a homosexual Gandhi. I am not positing Gandhi’s sexual orientation, I am merely asking you to and try and reconcile the two seemingly divergent Gandhis – Mahatma and homosexual, in an attempt to appreciate the difference between character and chastity. Would the course of the independence struggle and post-independent India be any different had he been gay?

If only Gandhi was openly gay or bisexual, we wouldn’t be coming out on the streets today, now would we?

Notes – 

1. State of Gujrat declaring an unqualified ban on Great Soul – http://globalspin.blogs.time.com/2011/04/01/gandhi-lelyveld-and-the-great-indian-tamasha/

2. Judgment of Delhi High Court in the matter of Naz Foundation v. Governemnt of NCT of Delhi & Ors – http://www.nazindia.org/judgement_377.pdf

3. Prof. Shrinivas Ramchandra Siras’ ordeal as reported in The Hindu – http://www.thehindu.com/news/states/other-states/article113334.ece