Decriminalizing “Carnal Intercourse Against The Order Of Nature”

Decriminalizing “Carnal Intercourse Against The Order Of Nature”

By Dr. P.S. Sahni & Shobha Aggarwal

18 December, 2015
Countercurrents.org

An open letter to the Indian Parliamentarians on the repeal of Section 377 Indian Penal Code

As members of AIDS Bhedbhav Virodhi Andolan (AIDS Anti-Discrimination Movement, ABVA) which has spearheaded the movement on gay issues right from 1988-89 and had brought out the first citizens’ report on the gay issue, Less than Gay in 1991,[1] we appeal to the Indian Parliamentarians to take a quantum jump and stand up for Lesbian, Gay, Bisexual, Transgender (LGBT) rights right inside the Parliament. Ever since the Supreme Court of India re-instated Section 377 of the Indian Penal Code (IPC) in 2013, few amongst you have dared to take a pro-LGBT stance on the issue. Sonia Gandhi of Indian National Congress (INC) publicly stated:

“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.” [The Times of India, 13.12.2013]

Rahul Gandhi expressed disappointment with the Supreme Court (SC) verdict on homosexuality:

“These are matters of personal freedom, I would agree with the High Court more on this matter.”[2]

The Communist Party of India (CPI) leader D. Raja asked the NDA Government to initiate the process of bringing suitable amendments to Section 377, IPC which was declared as constitutional by the Supreme Court.[3]

The CPI(M) Election Manifesto, 2014 stated “Amend Section 377 of the Indian Penal Code so that it does not criminalize adult consensual relationships irrespective of sexual orientation.”[4]

The Aam Aadmi Party was:

“…disappointed with the judgment of the Supreme Court upholding the Section 377 of the IPC and reversing the landmark judgment of the Delhi High Court on the subject. The Supreme Court judgment thus criminalizes the personal behavior of consenting adults. All those who are born with or choose a different sexual orientation would thus be placed at the mercy of the police. This not only violates the human rights of such individuals, but goes against the liberal values of our Constitution, and the spirit of our times.

Aam Aadmi Party hopes and expects that the Supreme Court will review this judgment and that the Parliament will also step in to repeal this archaic law.”[5]

Terming the judgement as “disappointment”, TMC MP Derek O’Brien had said, “we are living today in a liberal world and the judgement is disappointing.”[6]

The Supreme Court judgement in Suresh Kumar Koushal & another (11.12.2013) outlined the history of anti-sodomy law in India. The offence of sodomy was introduced in India on 25.07.1828 through the Act for Improving the Administration of Criminal Justice in the East Indies. In 1837, a Draft Penal Code was prepared which included two clauses viz. 361 and 362: “Whoever intending to gratify unnatural lust, touches for that purpose any person or any animal …” with or without consent would be punished with imprisonment. In Note M of the Introductory Report of Lord Macaulay to the Draft Code these clauses were left to his Lordship in Council without comment observing that:

“Clauses 361 and 362 relate to an odious class of offences respecting which it is desirable that as little as possible be said. We leave without comment to the judgment of his Lordship in Council the two Clauses which we have provided for these offences. We are unwilling to insert, either in the text, or in the notes, anything which could have given rise to public discussion on this revolting subject; as we are decidedly of the opinion that the injury which would be done to the morals of the community by such discussion would far more than compensate for any benefits which might be derived from legislative measures framed with the greatest precision.”

[Note M on Offences Against the Body in Penal Code of 1837 – Report of the Indian Law Commission on the Penal Code, October 14, 1837.]

The rulers at that time in 1837-38 desired that as little as possible be said of these offences and wanted to thwart any public discussion on this ‘revolting’ subject. Ironically, in the Report of the Commissioner’s Vol XXVIII it was observed that a most improper ambiguity has been created; the false delicacy created by the ambiguity needed to be censured. The IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 06.10.1860.

This ambiguity in the law due to the rulers pretending to be coyish and the absence of public discussion around sexuality has effectively ensured that from 1828 to date i.e. for around two centuries different judges in the courts have interpreted the law differently.

In Govindarajula In re. (1886)1 Weir 382 it was held that inserting the penis in the mouth would not amount to an offence under Section 377 IPC; while in Khanu v. Emperor AIR 1925 Sind 286 it was held “that coitus per os is punishable under section 377 IPC”! In Khandu v. Emperor 35 Cri LJ 1096 (AIR 1934 Lah 261) it was observed that “Carnal intercourse with a bullock through nose is an unnatural offence punishable under Section 377, Penal Code." Again in Lohana Vasantlal Devchand v. The State AIR 1968 Guj 252 it was held that the act of putting a male-organ in the mouth of a victim for the purposes of satisfying sexual appetite would be an act of carnal intercourse against the order of nature. Ironically in State of Kerala v. Kundumkara Govindan and Anr., 1969 Cri LJ 818, the Kerala High Court observed: “Committing intercourse between the thighs of another is carnal intercourse against the order of nature.” In Calvin Francis v. Orissa 1992 (2) Crimes 455, the Orissa High Court outlined a case in which a man inserted his genital organ into the mouth of a 6 year old girl and observed that coitus per os is punishable under the section.

Supreme Court of India in its judgement in Suresh Kumar Koushal by Justices G.S. Singhvi and Sudhanshu Jyoti Mukhopadhaya have cited the aforementioned cases and many more and concluded that no uniform test could be culled out to classify acts as “carnal intercourse against the order of nature”; hence it was difficult to prepare a list of acts which would be covered by the section.

The British could be excused at least on the ground that they self-confessedly suffer from Victorian values on matters sexual. No such excuses for the Parliamentarians in India – a country which boasts of Kama Sutra (with a full length chapter on gay sex); Khajuraho caves which openly display sculptures in acts constituting “carnal intercourse against the order of nature”. The present day legislators will have to see India not through colonial eyes but with a knowledge of the ancient cultural practices.

While a few legislators have taken a bold stand outside Parliament even recently in 2015, there is no action within the precincts of the Indian Parliament. Arun Jaitley and P. Chidambaram while speaking at the Times Lit Fest in Delhi on 28.11.2015 (The Times of India, 29.11.2015) lamented the stance of the Supreme Court of India in reinstating Section 377, IPC. Shashi Tharoor made it be known through his twitter handle that he was moving a private member’s bill on the issue but he refused to give details of the bill itself. At a time when the Government of India puts up all bills in public domain before moving these in Parliament it would be more democratic if Tharoor’s bill is shared and opinion of all stake holders taken as also of those who are exerted upon the issue for over quarter of a century.

We, at ABVA, had sent an open letter to Sonia Gandhi about two years back for initiating a move for a private member’s bill on the issue.[7] Now that more than seven Members of Parliament (M.Ps) of different parties and also the Aam Aadmi Party (AAP) has supported the repeal of Section 377, IPC it would be appropriate that these M.P.s move either individually or collectively for a calling attention motion in Lok Sabha/Rajya Sabha where the issue should be discussed thread bare; apprehensions of parties like Samajwadi Party (who are opposed to the move) should be addressed. Also since the LGBT number could be as high as 4% of the population it would not just be sufficient to repeal Section 377, IPC but also to discuss and debate how this section of society has silently suffered principally because the democratic institutions were reluctant to address their concerns.

Generally a calling attention motion could last for up to a few hours and may even get extended up to the next day; the practice is to ensure that representatives of all parties speak. Since legislators belonging to INC, BJP, CPI, CPI(M), AAP, have already taken a stance, and also if they sign a calling attention motion notice, the Speaker in Lok Sabha and Chairman in Rajya Sabha would have no option but to permit such a debate. Both the nation and the Indian Parliament owe it to the LGBT community all this and much more.

In the Rajya Sabha MPs from various political parties like Derek O’Brien (TMC); D.Raja (CPI); Sitaram Yechury of CPI(M); Arun Jaitley (BJP) and Mani Shankar Aiyar (INC) could file notices with the Chairman, Rajya Sabha for ‘calling attention motion’ urging the house on a matter of urgent public importance. Even in the Lok Sabha elected representatives like Sonia Gandhi, Rahul Gandhi, Shashi Tharoor of INC as also elected representatives of AAP could file notices with the Speaker of the Lok Sabha for a similar debate. Unlike in the years 1828, 1837-38 and 1860 when colonial masters shied away from public discussion and left ambiguities in the law, the present day law makers in the Indian Parliament must ensure that history is not repeated. That practices like fellatio, cunnilingus should be explained, discussed and debated. Finally the law makers should ensure that adult consensual homosexual acts in private are decriminalized. It should be expressly discussed whether lesbianism was ever an offence under Section 377, IPC and if it was then it stands decriminalized. ABVA has always felt that ambiguity in law posed a real threat to the lesbians in India.

More than a year earlier on 22.07.2014 when a question was raised by MP Dharam Vira Gandhi in Parliament whether the Government of India proposed to repeal Section 377, IPC the Minister of State in the Union Ministry of Home Affairs stated that the matter is sub judice. For ready reference reproduced below is the Parliamentary question as well as answer:

Question:

(a) whether the Government proposes to amend or repeal Section 377 of the Indian Penal Code (IPC);

(b) if so, the details thereof;

(c) whether the Government proposes to give legal status to the sexual relationship outside the gender binary in a context where the Supreme Court has recognized the third gender and guaranteed them rights under the OBC category including holding discrimination on the basis of sexual identity and gender orientation as unconstitutional ; and

(d) if so, the details there of?

Answer:

Minister of State in the Ministry of Home Affairs (Shri Kiren Rijiju)

(a) to (d): No Madam. The matter is sub-judiced before the Hon’ble Supreme Court of India. A decision regarding Section 377 of IPC can be taken only after pronouncement of judgment by the Hon’ble Supreme Court of India.

The truth of the matter is that the matter is not sub judice as the curative petition pending in the Supreme Court of India for about two years has yet to be heard by a five judge bench to decide on its admissibility!!! Secondly, the 2013 Supreme Court judgement in Suresh Kumar Koushal categorically urged legislators to do their bit. It stated:

“…we would like to make it clear that this Court has merely pronounced on the correctness of the view taken by the Delhi High Court on the constitutionality of Section 377 IPC and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend the same as per the suggestion made by the Attorney General.”

When it suits the legislators the Indian Parliament never shies away from doing a Shahbano on the apex court judgement or passes legislations to specifically overturn orders passed by the apex court. In effect Parliament would be implementing the Supreme Court 2013 judgement by repealing Section 377, IPC.

Both the Supreme Court and Indian Parliament should stop throwing the ball in each other’s court! (no pun intended)

From:

Dr. P.S. Sahni and Shobha Aggarwal

Members, AIDS Bhedbhav Virodhi Andolan

Email: aidsbhedbhavvirodhiandolan@gmail.com

[1] http://www.sacw.net/article10497.html
[2] http://www.firstpost.com/politics/rahul-gandhi-refuses-to-back-sc-ruling-on-section-377-1284173.html
[3] http://www.aninews.in/newsdetail2/story242655/govt-should-try-to-bring-suitable-amendments-in-section-377-cpi.html
[4] http://cpim.org/elections-2014/manifesto
[5] http://www.aamaadmiparty.org/news/aam-aadmi-partys-statement-on-supreme-court-judgement-upholding-section-377
[6] http://indianexpress.com/article/india/regional/mps-voice-reservation-on-sc-verdict-on-homosexuality/
[7] Mainstream, VOL LII, No 10, March 1, 2014; http://www.mainstreamweekly.net/article4759.html

PIL as an Industry

by

Shobha Aggarwal

“Truth could influence only half a score of people in a given time or age, whereas falsehood and mystery would drag millions by the nose.”

-Aristotle

When I joined Campus Law Centre, Delhi University after completing B.A, (Hons). Philosophy from St. Stephen’s College in 1984, I was much mesmerized by Public Interest Litigations (PILs). At that time I thought that after becoming a lawyer I would only do PIL work as some present day PIL stalwarts – then just beginners – tried to indoctrinate us into the PIL realm.  We were much influenced, if not brain washed by the media blitzkrieg centering around the court proceedings and pronouncements upon PILs filed by our professors! When I became a lawyer in 1989 I started a small group called ‘Legal Support Group’, which provided free legal aid to the poor and needy, but refrained from filing PILs for reasons not clear in my conscious mind then.

A PIL stalwart from Bombay approached me in 1992-93 on behalf of a group. This group wanted a lawyer in Delhi who would – on the basis of news paper reports – quickly do field visits and file PILs in the Supreme Court. I declined the offer. Another lawyer known to me had accepted this offer and was not even paid his salary for this work – so much for the phoney concern of the PIL wallas for minimum wages. In 1994 as a member of AIDS Bhedbhav Virodhi Andolan – non-funded, nonparty organization – I was the lawyer petitioner in the writ petition filed in the Delhi High Court for the repeal of Section 377 of the Indian Penal Code which criminalizes homosexuality. This I suppose may fall within the broad definition of a PIL, as the affected parties were not directly before the Court, though we consciously did not call it a PIL. For reasons explained below I did not pursue this matter when it came up for final arguments in 2001. In any case by then foreign funded organizations had sprouted up in defence of homosexuality and one of these organizations filed a regular PIL on the same issue.

In 1998-99 I finally discovered the reason for my discomfort with PILs all along, as I researched into the fundamental question viz whether the PILs have been able to provide justice to the poor or not. Not surprisingly I came to the conclusion that PILs have failed to provide justice to those who need it most i.e. the poor and the working class. The reason I realized was very basic – that PILs flout the principles of natural justice which is the very essence of justice in existence from times immemorial. At that time I met a popular PIL lawyer – presently a Delhi High Court judge – to discuss my research ideas viz that PILs violate principles of natural justice and adversely affect the poor. He said he will not allow me to undertake this research. I had to tell him that he was no one to stop me.

Later in 2005 the above said research paper was published as a Citizen’s Report entitled “The Public Interest Litigation Hoax – Truth Before The Nation” by the PIL Watch Group –a non-funded, nonparty organization. We had a press conference on 7^th April, 2005 at the Press Club of India to release the Report. Three major groups of victims of PILs viz industrial workers, professional blood donors and leprosy patients who were either adversely affected or did not benefit out of PIL judgements of the Apex court addressed the press conference. All the three PILs pertaining to these victims were filed by high profile lawyers and activists and these PILs were heard by equally high profile PIL judges. The press conference was attended by 10 journalists from major Delhi-based newspapers and news agencies. Only the Statesman carried a detailed report; and Jansatta reported in a few lines. Without getting disheartened we have continued to campaign against PILs for about three years.

PILs do not follow any due process of law. They are like bypass surgeries conducted for coronary artery disease which sustain the illusion that some good is being done. However an objective study will show that just like bypass surgeries do not deliver the touted good, PILs too do not deliver justice. Equally true just as bypass surgeries inhibit natural channels (blood vessels around the heart) from opening up and benefiting the patients, even so PILs violate the laws of natural justice. In the long term just as bypass surgeries have made no difference in the mortality and morbidity rates of heart patients, the PILs too have not provided justice to the poor.

In the ongoing debate on PILs and judicial activism (set in motion by Justice A.K. Mathur and Justice Markandey Katju) lots of articles have been written almost in all the Delhi based English language newspapers. An important point being harped upon by the perpetrators of PILs is that since the Executive and the Parliament are not performing their role properly the third pillar i.e. Judiciary could step in and set things right. Such a reasoning smacks of an utter contempt for the final arbiters of change i.e. the people of India who can and have overthrown dictatorial governments in the recent history precisely at a time when the judiciary was found utterly wanting in taking a principled stand. The real power is with the people. Any debate which excludes the people of India is contemptuous of the people of India. Also, a cursory look at the articles published in English dailies in the last eight weeks would show that barring a stray exception, the writers happen to be the very same ‘PIL stalwarts’ who file PILs; erstwhile judges who sat in the bench hearing the PILs. So it is only their opinion which is getting wide coverage. Hence the debate is one-sided.

So in the end in the name of the poor – who are yet to receive any advantage out of the PILs – the PIL has become a multimillion dollar industry. The day is not far off when PIL NGOs will be listed on the Bombay Stock Exchange (one such funding organization is already enlisted). Of course the only sad part is that the vested interest is not allowing the real debate on PILs to take place. These ‘PIL stalwarts’ – lawyers, ex-judges, NGO-activists – will be answerable to the future generations for ruining the Indian Jurisprudence. I have read somewhere that it takes about 100 years for a forest to regenerate by itself after being denuded for pecuniary interests. That is the time span it will take for the Indian jurisprudence to recover from the ravages of PILs. That, too, will happen only if the vested interest is crushed and a complete ban is put on PILs!!!

Not one of these NGO activists, not one of these PIL lawyers; and not one of these retired judges of the Supreme Court and High Courts have made any attempt to get a feedback from the very poor and downtrodden masses in whose name the PILs have been touted to be filed. Such is the utter contempt of the intellectual class towards the poor people. Not one of these “do-gooders” has ever conducted a research study to prove the very assumptions of their theory which profounds that the poor have benefited by the cottage industry that PILs have become.

In the interest of justice and fair play the Govt. should undertake an in depth nation wide study to ascertain whether the poor have benefited or not in the last thirty years of coming into existence of the PILs; or whether the poor have actually suffered on account of the PILs! For the study to be authentic and objective all those forces which have a vested interest in perpetrating PILs should not be associated with the study. Till such time that the results of the study are made public, if at all PILs are to be admitted it should be ascertained that the poor would benefit out of the PILs and in any case not harmed by PILs. Secondly, the poor themselves should be heard in these cases and not through any vested interests.

[The author is a Delhi based advocate and a member of PIL Watch Group and can be contacted at pilwatchgroup@gmail.com]

Also at:

http://www.sacw.net/article11110.html

Continued Incarceration of Political Prisoners in Kashmir Vs. Release of Political Prisoners in India After Lifting of Internal Emergency. A Study in Contrast

By

Dr. Paramjit Singh Sahni & Shobha Aggarwal

The whole of Kashmir valley has been likened to an open prison where people live in conditions akin to being in a state of perpetual Internal Emergency. The civil liberties and democratic rights of freedom loving people have been trampled upon by police, paramilitary and the armed forces. Draconian laws like Armed Forces (Special Powers) Act, 1958 [AFPSA] continue to exist. There is an army of occupation estimated to be numbering around 700,000 armed and uniformed personnel. The print, audio-visual and the social media face a situation of censorship every time the people of Kashmir rebel against inhuman and cruel living conditions; the right to rebel is effectively crushed. Even getting a private member’s resolution to be raised in the Assembly urging for return of mortal remains of Afzal Guru is effectively thwarted. The functioning of courts in conflict zones does not inspire much confidence. Even peaceful and democratic protests, say for boycott of elections, all over the valley are quelled through the use of indefinite curfew, police firing, preventive detention, encounters and torture. Since 1947 assurances given to people of Kashmir have been consistently violated; for instance plebiscite never took place. Article 370 has been effectively diluted, even as there is a constant refrain from the right wingers urging Article 370 to be scrapped altogether. As a last resort when a movement for ‘Azaadi’ is launched brute force is used to crush it. No options are then left for the people of Kashmir by the Indian State.

One period the people of India faced a repressive situation all over the country was during the imposition of Internal Emergency by the then Prime of India, Mrs. Indira Gandhi in 1975. But that period did not last beyond twenty-one months; during which time over a hundred thousand people were imprisoned including politicians, trade unionists, academicians, intellectuals, journalists, students, ultra-left activists and many others. The arrests were made under draconian laws – MISA (Maintenance of Internal Security Act) and DIR (Defence of India Rules). Freedom of speech was curtailed. There was press-censorship. The rulers amended and subverted the Constitution of India umpteen times for their vested interests. The right to life itself was suspended. (It is only now that Supreme Court judges of those times have started apologizing for the havoc their judgements brought on the citizens of India.) It was because of the tremendous resistance – both underground and over ground as well as nationally and globally that the Internal Emergency was revoked and political prisoners were released. It is true that even the new dispensation that emerged after overthrowing Mrs. Gandhi’s government was initially reluctant to release prisoners who are referred to as Naxalites by the establishment, but later ordered their release.

It will be in order to recapture the developments which led to the imposition of Emergency. During 1973 the Nav Nirman movement emerged in Gujarat led by students who were agitating against corruption and inflation. (Narendra Modi, the present Prime Minister is said to have been an active participant in the movement). The movement was supported by Bharatiya Jana Sangh, Congress (O), Communist Party of India (Marxist), SP and others. While it succeeded in getting Gujarat assembly dissolved – 95 people died during this agitation and 933 persons were injured due to the agitation becoming more violent which led to police firing. There was loss to public and private property. Nobody including the Sangh Parivar shed a tear for demise of the rule of law and constitutional means. A duly elected state government got overthrown using techniques like gheraos and the like; it was not through elections!

Jayaprakash Narayan (J.P.) inspired and encouraged a similar movement in Bihar for the dissolution of the assembly; there, too, students were in the lead. The number of fatalities was 70 and the number injured was 500. The year 1974 also saw the all India strike by railway men under the leadership of socialist leader, George Fernandes. The strike lasted for twenty days. It was brutally suppressed through use of strong arm tactics. There was flagrant violation of civil and democratic rights. Thousands of railway men were sent to jails and lost their jobs. This has been likened to a dress rehearsal for Mrs. Gandhi’s Emergency regime. In early January, 1975 L.N. Mishra, the Union Railway Minister was assassinated in Samastipur, Bihar. This was followed by an attempt on the life of the Chief Justice of India.

Indira Gandhi’s response was through the imposition of Internal Emergency triggered by her election being set aside by the Allahabad High Court. Mass arrest of political leaders of all hues followed including socialists, communists, Jan Sanghis, members of Rashtriya Swayamsevak Sangh (RSS), break away factions of the Congress; members of Akali Dal, Muslim League and others. L.K. Advani, Atal Bihari Vajpayee, Arun Jaitley too faced imprisonment. George Fernandes led an underground movement and garnered support from several sources to use dynamite to blast government buildings and to “transport the explosives from Baroda to Varanasi.” Upon arrest in 1976 he was tried under the Baroda Dynamite Case; this case was withdrawn when Janata Party came to power. Later in Atal Bihari Vajpayee’s regime Fernandes rose to be the Union Defence Minister. The Bharatiya Janata Party (BJP), the RSS and other right wing bodies were comfortable with the idea of George Fernandes as the Defence Minister; that the unity and integrity of India would not be threatened by someone who was at one time – during the underground movement in mid-seventies – self-confessedly dynamiting government buildings. Even as late as 2005 before his memory faded he had publicly acknowledged the support he had received from the DMK chief Karunanidhi in the Baroda Dynamite attacks during Emergency with moral and material support.

Fernandes and his associates had every right to rebel against Mrs. Gandhi’s dictatorship. It is appropriate that he was treated as a political prisoner and released by the Janata party government. Even as serious criminal charges were leveled against Fernandes, the attempt of Mrs. Gandhi’s government then was to ensure that civil society would be less inclined to canvas for his release. This is a standard ploy used by all regimes from the British era down to Modi’s regime. Draconian laws are framed and political activists during their legitimate political activity are framed under such black laws. As always the attempt is to discredit the political activists and ensure that a wave of protests for the activists to be treated as political prisoners is effectively prevented.

But shouldn’t such courtesy i.e. being released as political prisoners from jails, withdrawal of criminal cases be extended to those who participated in and spearheaded the May-June 2010 Quit Kashmir movement launched against the Indian Army?  Those who participated in that movement were sick and tired of the atrocities committed by the army personnel. The trigger point was the staged encounter at Sona Pindi of three young Kashmiri Muslims who were taken from their Nadihal Village in Baramulla District and how eventually it was found to be fake. The Kashmiris had every right to rebel which they did through hurling pebbles – sorry stones – when confronted by the might of the police and paramilitary forces all over the valley. It resulted in the death of over one hundred and ten civilians and 537 civilians were injured during the stone pelting incidents including many teenagers and a 11 year old boy between May to September 2010. A large number of CRPF men and police personnel were said to have been injured. Just as the leader of the Quit Kashmir movement – Masarat Alam was released on 7 March, 2015, political parties of all hues protested against the release in and outside the Indian Parliament. The BJP leaders at the Central Government raised the bogey of not being consulted prior to his release insinuating thereby that they would have objected. The central BJP leadership and members of Sangh Parivar and all political parties should remember how they themselves were released from jails as political prisoners just a few decades back. Kuldip Nayar –  veteran journalist, who was himself jailed under MISA during the Emergency – should  have been supporting Masarat Alam’s release. The Quit Kashmir movement leaders were only urging for the army to be withdrawn from Kashmir. Contrast it with the statement of Jayaprakash Narayan just a day before the Emergency was imposed wherein he had urged the police and the army to disobey illegal orders challenging Indira Gandhi to bring charges against him if she thought he was preaching treason! Notwithstanding treason, J.P. was released.

It is learnt that a number of political prisoners of the Quit Kashmir Movement as also several hundred arrested during the earlier phases of struggle are languishing in jails in Kashmir and elsewhere. If people charged under the Baroda Dynamite Case can have cases withdrawn and released from jails, there is no reason why political activists in Kashmir have to face continued incarceration in jails. There is a very real possibility that false criminal cases under draconian laws may have been filed even against those involved in the Quit Kashmir movement. In the interest of justice and equity each one of those involved in that movement should be released forthwith.

After the release of Masarat Alam the Jammu and Kashmir government has reportedly decided against release of anymore political prisoners. Historically, political prisoners put behind bars are released when the regime changes. This is the first time that Peoples Democratic Party (PDP) and BJP combine is in power in Jammu & Kashmir. It would be politically wise to release all political prisoners put behind bars by the earlier political dispensation.

[Paramjit Singh Sahni, Orthopaedic Surgeon & Shobha Aggarwal, advocate are members of Public Interest Litigation Watch Group. Email: pilwatchgroup@gmail.com]

Also available at:

http://www.countercurrents.org/sahni050415.htm

Afzal Guru’s Mortal Remains Must Reach His Family

By

Dr. Paramjit Singh Sahni & Shobha Aggarwal

In the next session of Jammu and Kashmir assembly scheduled to start on 18 March, 2015 the issue of return of Afzal Guru’s mortal remains is expected to be debated.

Afzal Guru, convicted in the attack on the Parliament House, New Delhi, India in 2001 was clandestinely hanged to death with in the precincts of Tihar Jail, Delhi on the morning of 9 February, 2013. His family was not kept informed about the day and timing of the hanging; neither were family members allowed a last visit to meet him. It is public knowledge that Afzal was not provided proper legal assistance; there was no foolproof evidence against him. Besides, out of the convicts on the death row he was singled out of his position (said to be twenty-eight) largely due to the pressure exerted by the ultra nationalist party, BJP and the Sangh Parivar. It was purely a political decision by the Congress. His mercy petition was rejected by President Pranab Mukherjee a few days prior to his hanging. He had been on the death row for nearly eight years. The Supreme Court had sentenced him to death on 4 August, 2005 to satisfy the “collective conscience of the society”. There were wide spread and continuous protests in the Kashmir valley. Curfew had been clamped for several days in all ten districts of the valley to prevent people from expressing their sorrow and anger. The army was put on high alert. The print and audio visual media were subjected to a clamp down for days. Telecommunication, cable T.V. services and internet was blocked.

Afzal Guru’s wife and family members have been persistently making a strong plea for the mortal remains of Afzal Guru to be returned. The Indian state has stubbornly refused to pay heed to this request. Thus Afzal Guru lies buried at Tihar jail, Delhi. In the same jail premises the mortal remains of Maqbool Bhat also stay buried since his hanging on 11 February, 1984. Empty graves at “martyrs’ graveyard” in Srinagar await return of mortal remains of Maqbool Bhat and Afzal Guru.

The Government of India has been steadfastly refusing to hand over the mortal remains of these two Kashmiri Muslims widely perceived to be martyrs to the cause of Kashmir. The reasoning provided by the authorities is that the return of the mortal remains may create a law and order situation in Kashmir or it may give a fillip to militancy! History points to the contrary. Militancy was on the ascent years after Maqbool Bhat’s mortal remains were confined with in the precincts of Tihar jail. The philosophical question, then, is to whom do the mortal remains belong to after the state has executed a person? It is globally perceived that on humanitarian and other considerations the mortal remains of those executed must be handed over to the family/local community to which the person belonged. Examples from history are in order.

Take the case of Udham Singh who had travelled all the way to U.K. and on 13 March, 1940 had assassinated former Punjab governor, Michael O’Dwyer at Caxton Hall, London. The latter had approved of the action of General Dyer at Jallianwala Bagh, who had ordered firing on thousands of peaceful protesters at Jallianwala Bagh on Baisakhi day in 1919 in Amritsar. On 31 July, 1940 Udham Singh was hanged at Pentonville Prison in London. His mortal remains were brought to Punjab in 1974. The martyr’s home – a single room dwelling built of small bricks – is under the care of state archaeology, museums and cultural affairs department.[1]

The revolutionary Bhagat Singh was arrested on charges of shooting dead John P Saunders, an assistant superintendent of Police on 17 December, 1928 while he was coming out from the police headquarters at Lahore. Bhagat Singh was tried and sentenced to death. It is generally believed that Bhagat Singh, Sukhdev and Rajguru were hanged at night by the British on 23 March, 1931 in contravention of the Jail Manual which allows hanging in the morning. The mortal remains of the martyrs were also not handed over to their families. The exact place of the cremation is still unknown.[2] The fall out of such clandestine hanging and cremation is that many theories differing from the official version sprout forth and further anger and sorrow ensues amongst the people. This leads to extreme alienation. The National Martyrs Memorial, Hussainiwala built in 1968 depicts the revolutionary spirit of the three national martyrs.

How strong and long lasting the feelings of getting the mortal remains of a martyr remain embedded in the collective psyche of a people can be gauzed from the persistent demand made till date to bring Bahadur Shah Zafar’s mortal remains from Rangoon, Myanmar (Burma) to Delhi. Bahadur Shah was arrested by the British rulers and tried. In 1857, he was brought to Rangoon in captivity and died there on 7 November, 1862 at the age of 87. In a memo to the President of India submitted on 7 May, 2013 the Socialist Party, India reminded that Zafar was the leader of the first war of independence against the colonial powers and a symbol of Hindu-Muslim unity and wondered “why the rulers of free India are not ready, even symbolically, to undo the insult and injustice meted out to Zafar by at least bringing back his remains to India and put him to rest at the place of his choice Dargah Qutbuddin Bakhtiyar Kaki at Mehrauli, where an empty grave awaits his remains.”[3]

For decades family members of Subhas Chandra Bose and other saner voices have been demanding that the Union Government should tell the truth about the cause of his death which is said to have taken place on 18 August, 1945. But even this basic information has eluded the people. The Justice Manoj Mukherjee Commission of Inquiry set up in 1999 said that Netaji did not die in a plane crash over Taiwan and the ashes in a Japanese temple were not Netaji’s. Modi government takes the UPA line on files pertaining to Subhas Bose by not making them public.[4]

Roger Casement was a British diplomat, human rights activist, Irish nationalist and a poet. In 1913 after retiring from the consular service, he became more involved with the Irish Republican and Separatist movement. He was tried for treason in view of his efforts during the Great War to gain German collaboration for an armed uprising in Ireland to gain Independence against British rule. He was hanged at Pentonville Prison in London on 3 August, 1916, at the age of 51. Casement’s body was buried within the prison premises. In 1965 his remains were repatriated to the Republic of Ireland which had gained effective independence in 1922.[5]

Even during wars between two countries Prisoners of War (PoWs) are exchanged at the end of the conflict; so are the injured and the dead. Also during internal conflicts within a country a similar arrangement exists. In such situations the reasoning accorded by the governments – that the return of the mortal remains may increase the anger amongst the citizens of the enemy country – is never made an issue; bodies of those killed in encounters by the police/para-military/army are returned to the family of the deceased. On rare occasions the administration takes the precaution of using police cover right up to the cremation/burial site so that the last rites are performed peacefully. During the last rites of ‘Nirbhaya’ – whose gang rape in Delhi had stirred a national outrage in December, 2012 – apart from the family members the only other persons at the cremation ground were politicians, bureaucrats and police people. Even during natural calamities like earthquake, floods, cyclone as also during riots based on caste/religious community/ethnicity the bodies are returned to the family. Or a mass funeral is organized at the site of the tragedy. At times the authorities go to the extreme length of identifying bodies of those killed in plane/train crashes or in ship-wrecks using the DNA test to deal with the compensation issue later on. In all the aforementioned situations the common thread is that the body of the deceased must reach the family even as the administration faces the wrath of the people as the “body bags” reach the family/community.

It is pertinent to add that the International Committee of the Red Cross (ICRC) deals with the return of the remains and personal effects of the dead vide its Rule 114:

“Rule 114. Parties to the conflict must endeavour to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.”

The ICRC further elaborates:

State practice establishes the customary nature of this rule in international armed conflicts. In the context of non-international armed conflicts there is a growing trend towards recognition of the obligation of parties to a conflict to facilitate the return of the remains of the dead to their families upon their request. The fact that this obligation is in keeping with the requirement of respect for family life (Rule 105 of the ICRC) implies that it should apply equally in both international and non-international armed conflicts. [6]

In all situations the body of the deceased must reach the family. This alone would satisfy and soothe the collective conscience of the society.

[Dr. Paramjit Singh Sahni and Shobha Aggarwal, advocate are both members of Public Interest Litigation Watch Group. Email: pilwatchgroup@gmail.com]

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[1] http://timesofindia.indiatimes.com/india/Mere-assurances-marked-Udhams-martyrdom-day-every-year/articleshow/21497137.cms

[2] http://madangsingh.expertscolumn.com/article/fresh-facts-hanging-bhagat-singh

[3] http://www.merinews.com/article/socialist-party-requests-president-to-bring-back-bahadur-shah-zafars-mortal-remains/15885179.shtml

[4] http://indianexpress.com/article/india/india-others/explained-the-netaji-files/

[5] http://en.wikipedia.org/wiki/Roger_Casement

[6] https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule114

Also published at:

1. http://www.countercurrents.org/sahni150315.htm

2.http://www.kashmirobserver.net/news/opinion/why-afzal-gurus-mortal-remains-must-reach-his-family 

AN OPEN LETTER TO KIRAN BEDI – HOMOSEXUALITY, PRIVACY RIGHTS AND THE FORTH-COMING DELHI ASSEMBLY ELECTIONS

By

Dr. Paramjit Singh Sahni & Shobha Aggarwal

The right wing nationalist Bharatiya Janata Party (BJP) has projected you as the Chief Ministerial candidate in the Delhi Assembly elections scheduled for 7 February, 2015. The lawyers in all the subordinate courts of Delhi have opposed your candidature reminding the electorate about the brutal lathi charge in 1988 leashed upon them under your stewardship while you were the Deputy Commissioner of Police (North). One of the injured lawyers is presently functioning as a judge of the Delhi High Court; he was given eight stitches for the injuries sustained during the lathi charge. Subsequently a Judicial Commission of Inquiry headed by Justice D.P. Wadhwa indicted you. All this is fresh in public mind. What needs to be highlighted is your homophobic views aired publicly while you were the Inspector General of Prisons (Tihar, Delhi).

Your prejudices effectively ensured that the Jail inmates were denied access to condoms. Media reports at that time indicated that you consider homosexuality to be “abnormal” and would like to take all steps to give the inmates “a chance to be normal”. You had opined, then, that you would not hesitate to step up surveillance to “ensure” that inmates do not indulge in homosexual activity. Moreover you saw “no need” to amend Section 377 of the Indian Penal Code (IPC). To recapitulate what you said:

“I am still not reconciled to except homosexuality as a normal human practice. We need to undertake a massive education programme among the inmates so that I could at least give them a chance to be normal. The first step would be preventive, through an education programme. If that doesn’t work, the next step would be to increase surveillance.

“If that too fails, I would go in for increased counselling. Only after that would I consider anything else.”

You also said that supplying condoms “would amount to encouraging people to indulge in homosexuality. It would be like legalizing drugs.”

Constitutional lawyers at that time had dubbed your assertions about surveillance to be preposterous; and that it would be the death of liberty of prisoners.

It will be a bit too late as well as embarrassing for you to say that you have been misquoted, as the above quotes are from The Pioneer dated 21.02.1994 and the reporting is by Amit Prakash. The Pioneer’s editor is a Rajya Sabha member courtesy BJP; the paper is pro-BJP.

You would recall that members of AIDS Bhedbhav Virodhi Andolan (ABVA) had an official meeting with your good-self in 1994 within the precincts of Tihar Jail and had given you a copy of “Less Than Gay”, a Citizens’ Report on the Status of Homosexuality in India, brought out by ABVA in November-December, 1991. This report was the first such document published in India. ABVA had requested you to go through the report and shed your prejudices against homosexuality and come to terms with the fact that a percentage of people (males and females) have a different sexual orientation which is both normal and natural; these are the gay and lesbian people. Homosexuality is innate; you are born with it. Access to condoms will not make a heterosexual person to ‘become’ a homosexual person.

Ms. Bedi, when you were planning to increase surveillance of inmates at Tihar Jail did you realize that you would be subverting the fundamental rights enshrined in the Indian Constitution available to all citizens of India including those inside the jail? Article 21 of the Constitution of India guarantees the right to life and personal liberty. The Right to Privacy is an essential part of the Right to Life as enunciated in several Supreme Court judgements.

We wish to refresh your memory that in 1994 ABVA had filed a Civil Writ Petition no. 1784/1994 titled AIDS Bhedbhav Virodhi Andolan v. Union of India & others wherein you as Inspector General of Prisons (Tihar, Delhi) were respondent number 4. The petition prayed interalia:

“(a) to declare that section 377 of the Indian Penal Code 1908 is unconstitutional and void –

as being hit by the provisions of Articles 13, 14 and 21 and 25 of the Constitution of India. …

       (d)  to restrain the respondents from segregating or isolating prisoners with a certain sexual orientation or those suffering from AIDS or from commencing prosecution against those prisoners who are suspected to have participated in consensual anal intercourse.”

To refresh your memory we reproduce relevant points from the counter affidavit filed by you in the said writ petition in September, 1994:

“… there is no justification and legality for supply of condoms in the prison. Supply of condoms will promote homosexuality.”

Outlining the steps taken to discourage homosexuality in jail the affidavit elaborated that senior level check at night is being taken; as also an Open Panchayat system which allows free interaction on development in the prison; and mobile petition box system to encourage anonymous information of all kinds of incidence of behavior.

Your affidavit betrays your ignorance on and prejudices about homosexuality as also your intention to undertake surveillance on the private lives of prisoners.

Ms. Bedi, do you still hold the same views on Lesbian, Gay, Bisexual and Transgender (LGBT) issues after a lapse of more than two decades?

For your ready reference we may point out that a large section of civil society appears to be in favour of decriminalizing consensual homosexual acts. Amongst the political parties and their allied groups, the Bharatiya Janata Party, Vishva Hindu Parishad, Rashtriya Swayamsevak Sangh perceive gay sex to be unnatural. The Left parties and Aam Aadmi Party are in favour of decriminalizing homosexuality. Both Sonia Gandhi and Rahul Gandhi of Indian National Congress have publicly supported the removal of Section 377, IPC – an archaic, repressive and unjust law that infringes on the basic human rights enshrined in our Constitution; Sonia Gandhi hopes that Parliament will address this issue and uphold the constitutional guarantee of life and liberty to all citizens of India.

Lastly the LGBT community is not a miniscule minority. 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.

[Dr. Paramjit Singh Sahni is one of the founder members of ABVA; Shobha Aggarwal is an advocate and the ABVA’s writ petition was filed through her. Both are members of Public Interest Litigation Watch Group.]

(The above open letter was shared with AAP on 01.02.2015.)

On 02.02.2015 AAP wrote to PIL Watch Group

Aam Aadmi Party	Feb 2 (8 days ago)
to me

Dear Dr. Paramji Singh Sahni Ji & Shobha Aggarwal Ji

Greetings

We thank you for sharing this. We shall forward the same to our team internally for them to go through the article. Kindly support us in all possible way for the upcoming election in Delhi.

Warm Regards

Sundar Rajan

Team AAP

On 10.02.2015

Kiran Bedi as BJP's CM candidate stands CONDOM-ned!