To,
Smt. Sonia Gandhi,
President,
All India Congress Committee,
10, Janpath, New Delhi-110011
24 December, 2013
Respected Madam,
It
was a breath of fresh air reading your public statement on the issue of
homosexuality in the backdrop of the recent Supreme Court judgement upholding Section
377 of the Indian Penal Code which criminalizes homosexual acts. Ironically,
this apex court judgement of 11.12.2013 had overturned the 2009 Delhi High
Court judgement on the issue. Naturally there have been popular protests – and not
just by Lesbian, Gay, Bi-sexual, Transgender (LGBT) groups – all over the
country and abroad. A large section of civil society appears to be in favour of
decriminalizing homosexual acts. Amongst the political parties and their allied
groups, the Bharatiya Janata Party, Vishva Hindu Parishad, Rashtriya
Swayamsevak Sangh perceived gay sex to be unnatural; as also the Samajwadi
Party. The left parties and Aam Aadmi Party have opposed the Supreme Court
judgement; and parties in the rest of the political spectrum are maintaining a
deathly silence on the issue. It is in this backdrop that your statement
assumes significance. To quote:
“I am disappointed that the Supreme Court has reversed
a Delhi High Court ruling … the High Court had wisely removed an archaic,
repressive and unjust law that infringed on the basic human rights enshrined in
our Constitution…I hope Parliament will address this issue and uphold the
constitutional guarantee of life and liberty to all citizens of India.” [Times
of India, 13.12.2013]
In
1991, a historic publication “Less Than
Gay – A Citizens’ Report on the Status of Homosexuality in India was brought
out by ABVA (AIDS Anti-Discrimination Movement of India). It was the first such
public report on the issue and initially popular magazine ‘Sunday’ had called
it pornographic literature. The ABVA had to approach the Press Council of India
(PCI) to adjudicate whether the Report is pornographic or not. Justice Sarkaria
the then Chairman of the PCI finally ruled that it is not.
Interestingly
this report by ABVA makes a startling observation which is worth quoting:
“The only other known reference to this subject in Parliament
was during Mrs. Gandhi’s last term as Prime Minister (1980-84). When questioned
by a Member of Parliament whether homosexuality would ever be decriminalized in
India, she replied, ‘Not in my lifetime.”
(communication from a Delhi University lecturer)” [Page 64, Less Than Gay]
(communication from a Delhi University lecturer)” [Page 64, Less Than Gay]
More
than a quarter century after Mrs. Gandhi’s demise your public statement on
11.12.2013 Supreme Court judgement on homosexuality is in tandem with changing
times and mores. In 1992, ABVA was forced to stage a protest demonstration at
the Police Headquarters, ITO, New Delhi since a large number of gay people had
been arrested from the Central Park, Connaught Place on charges of being about
to indulge in homosexual acts. The charges were baseless and only a means to
blackmail and extort money from these people. As a felt need the undersigned, a
lawyer by profession, on behalf of ABVA filed a writ petition in the Delhi High
Court in 1994 urging inter alia that the
court should strike down Section 377 of the Indian Penal Code as unconstitutional.
The case titled AIDS Bhedbhav Virodhi
Andolan V. Union of India & Others, Civil Writ Petition No. 1784 of 1994
was finally disposed off in 2001 after 7 years. This case was used to mobilize
LGBT community; to network with groups working with the sexual minorities
urging them to appeal to the powers that be to get Section 377 of the Indian
Penal Code deleted from the statute books. These early years of the gay
movement in India spearheaded by ABVA have been documented extensively in
journals, magazines, books, newspapers and websites. [e.g. Vimal
Balasubramanian, 'Gay Rights in India', Economic and Political Weekly; February
3, 1996; Sherry Joseph, ‘Gay and Lesbian Movement in India’, Economic and
Political Weekly; August 17, 1996]
Madam,
the undersigned had also authored the report “The Public Interest Litigation Hoax – Truth Before The Nation”
after completing the research in 1999-2000. (The Report was published much
later). Extracts from the Report were published in the Mainstream issue of
August 5, 2006 Vol XLIV No. 33. One of the pertinent conclusions reached in the
Report is the reiteration of separation of functions of judiciary and
legislature; in particular restraining the judiciary from legislating. It is
with this wisdom and conviction gained that one writes to you to ensure that an
Ordinance is brought forth de-criminalizing homosexuality or get the Parliament
to legislate on the issue at the earliest. The Union of India filing a review
petition in the Supreme Court is an abdication by the Government of its primary
responsibility of making and updating laws in consonance with the Constitution
of India and changing realities. It is
true that during voting on any such legislation the arithmetic may not be in
favour of the passage of the Bill. But this alone cannot be reason enough for
letting a minority community to be left facing inhumanities. After all the
solution lies in inclusiveness as articulated by Pandit Jawaharlal Nehru.
Your
own father-in-law, Feroze Gandhi had brought a Private Member’s Bill in 1956 titled
Parliamentary
Proceedings (Protection of Publication) Bill which was cleared by
the Parliament. A large number of Private Members’ Bills brought in Parliament
are courtesy Members of Parliament from Indian National Congress. In the event
of difference of views with in your own party (the old guards with in the 100
year old Congress party may have reservations) would you consider bringing a
Private Member’s Bill in the very next session of Parliament just before the
2014 general elections in your own name? Lastly the LGBT is not a miniscule
minority as the 11.12.2013 judgement presumes. No authentic census has been
conducted in India on the exact number but the number is likely to be close to
4% of the population, if one were to go by the studies done by Alfred Kinsey,
an American scientist in the last century. There is no known reason to believe
otherwise. This constitutes a sizeable number of potential voters for any
party. Reports indicate that President Obama got re-elected courtesy a swing of
this section of voters towards the Democratic Party in the U.S.A.
Yours
sincerely,
(Shobha
Aggarwal)
(Jt.
Secretary, PIL Watch Group and associated with ABVA since its inception in
1989)
P.S.: The
review petitions filed by the Union of India and others seeking review of the
11.12.13 judgement were also dismissed by the Supreme Court on 28.01.2014.
Also At: http://www.mainstreamweekly.net/article4759.html
Also At: http://www.mainstreamweekly.net/article4759.html
