Posted by Agnivo Niyogi
On the morning of 11 December 2013, I woke up with a hope that history will take a new course that morning. Excited and charged up for a celebration, I stared animatedly at my Twitter feed, waiting for the news to break. Two tweets appeared on my TL back to back. The fact did not sink in. By 10:45, i was unable to read my Twitter feed, eyes moist with tears. From a respected citizen of India, who in his smallest capacity had been contributing to the cause of nation-building, was now a criminal! Supreme Court had recriminalised Section 377, finding no “constitutional infirmity” in the draconian law.
What I was not anticipating was the huge outpouring of support for equal rights movement for gays and outrage against the irrational and incompetent (with shades of homophobia) verdict of the Supreme Court. Unlike 2009, when the landmark judgment of Retd Justice AP Shah was jeered, the queer taunted, and supporters of gay rights mocked on and off social media, for the last three days, the extent of support has been overwhelming, to say the least.
Justice Singhvi, who delivered the regressive judgment annulling July 2 2009 verdict by the Delhi High Court, hid behind a slew of procedural walls, which he himself chose to demolish in the past, when he bypassed the legislature and executive to frame public policy for telecom in the aftermath of the 2G scam. The judge who takes the liberty of unsettling the balance between the three wings of government in fiscal matters, giving the excuse that it is the legislature’s job to make amends to laws, is downright hypocritical.
The judiciary is the custodian of human rights, and has the mandate to make decisions in the interest of the public. But Justice Singhvi thinks annulling Section 377 of the IPC for a “miniscule minority” in improper. Well, Justice Singhvi needs to be reminded that any minority, no matter how miniscule needs to be protected and their rights secured – the Constitution of India warrants that.
Interpretation of statutes is another mandate of the judiciary in case of conflicts. By declaring that the Section 377 suffers from no Constitutional infirmity, the Supreme Court has put its stamp of approval on treatment of about 100 million (figures stated by top media houses) citizens of the country as criminals. A law drafted in 1860, to preserve the Anglo-Christian morality, got a thumbs up from the supreme judiciary in India in 2013!
Away from the legal debate, a social debate was raging on social media platforms. The army of homophobes were out in full force, led by the Commanders Subramanian Swamy and Ramdev, who deserve Nobel prizes in Medicine for the absurd claims they made regarding homosexuality, without bothering to provide even a shred of credible evidence. Three years back I would have engaged in Twitter battles with these dolts, arguing my case from Biological, social and psychological points of view.
However, my patience has thinned in the last 5 years of handling Internet Hindus, and I didn’t want to waste my energy on them. Fighting the Supreme Court is more important at this juncture. All those who are interested to read about the Scientific evidence that homosexuality is NOT an aberration, fully natural, genetic and hereditary, please do read my blogs on the subject (published in Gaylaxy).
A battle lies ahead. India is in need of a Stonewall moment. The LGBT community has never felt more galvanised. The entire media has thrown its weight behind us. There’s no stopping or looking back. 2009 empowered us. The SC setback has strengthened our resolve. Ladke LenGAY Hindustan.
DISCLAIMER: All Images Used In This Post Have Their Own Copyrights
Posted by Agnivo Niyogi
This post was originally written for NextGenIndia.
The historic July 2, 2009 verdict of the Delhi High Court, decriminalising homosexuality, came up for hearing in the Supreme Court last month, after being challenged by various religious bodies in the apex court. The hearing has been making headlines in the mainstream media from day one, thanks to the various goof-ups made by the government of India.
To begin with, the ministry of home affairs put its foot in the mouth over their position on Section 377 of IPC. Speaking on behalf of the MHA, the Additional Solicitor General, Mr P P Malhotra reiterated the stand (which called homosexuality immoral and against the order of Nature) that MHA had taken in the Delhi High Court. The comments drew flak from all quarters, in mainstream media and social media. The MHA was quick to do a volte-face and distance itself from the ASG’s affidavit. On the next day, the govt counsel clarified in the court that while the govt had no legal problems with decriminalising homosexuality, they have no stand on “homosexuality” par se.
The government also earned the ire of the apex court bench for “making a mockery” of the system by continuously shifting its position on the issue at hand and digressing from the core issue of IPC 377, and focussing on the prevalence of HIV among homosexuals. The government put across the view that homosexuals formed a large risk group for the spread of the human immune deficiency. The Supreme Court reprimanded the govt for the lack of fresh data and asked them to present a detailed account of how many HIV patients are there in India at present and how many of them belong to the LGBT community.
The government came up with a set of data before the apex court. They claimed, there are about 25 lakh homosexual citizens in India, 7% of whom are affected by HIV. What correlation the govt wishes to draw between sexuality and a virus borne disease, is beyond our understanding. Specially so when sexual minorities are just another HIV risk group, and heterosexuals are at as much risk of the disease as LGBT community.
That the government has clearly made this case a theatre of the absurd was apparent from the Apex Court bench’s observation that the supreme legislating body of the nation was casual in its approach towards the case of homosexuals. It pondered what stopped the Lok Sabha from enacting a law decriminalising homosexuality, despite recommendations by the Law Commission.
It seems the rap from apex court worked in waking up the government from its slumber. On Wednesday, March 21, the Attorney General submitted to the court that they had no objection to decriminalising Section 377. Continuance with such an act was against Article 21 of constitution the counsel added.
However, this is too little too late. After opposing decriminalisation at Delhi High Court, the government suddenly seems to have woken up to human rights. Why did the government wait 3 years before changing their stand on Section 377 of IPC, if they claim Delhi High Court verdict was enlightenment for them? Why did the Prime Minister of the country not censure his Health Minister for publicly claiming homosexuality was a disease bred in foreign shores?
The right to dignity of life for the LGBT community is now a few weeks away when hearings on the issue ends in Supreme Court. Till then all eyes will be on Justice G S Singhvi and Justice J S Mukhopadhyay.
[P.S. – This is a rewritten version of an article for the Gaylaxy magazine].