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Decriminalizing Same Sex Relations in India: A Legal Beginning

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Decriminalizing Same Sex Relations in India: A Legal Beginning

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by Aditi Bhaduri
India

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India’s recent decriminalization of same sex relations has given hope to many that the country’s tolerance and policy is shifting. Photograph by flickr user lighttripper used under Creative Commons licenses.

A mini revolution is underway in India. On July 2nd the Delhi High Court read down a 149-year-old archaic law that criminalized same sex relations. It is a tiny victory for a battle that has long been fought in courtrooms, bedrooms and counseling halls across India.

It was a petition to legalize gay sex filed in the Delhi High Court in 2001 by the Naz Foundation, an advocacy group for homosexuals, that began the legal debate and movement to squash Article 377.

AP Shah and S Muralidhar, the bench that presided over the case, cited that “It cannot be forgotten that discrimination is an antithesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”

The judgment has galvanized Lesbian-Gay-Bisexual-Transgendered (LGBT) activists across India. Historically in ancient India same sex relations were acknowledged and existed without any history of persecution. According to sociologist Ruth Vanita “Variations in gender and sexuality have been discussed in Hindu texts for over two millennia; same-sex love flourished in pre-colonial India, without any extended history of persecution.” However, she says it all changed when European Christians arrived in India and “were shocked by Hinduism…and by the range of sexual practices, including same-sex relations.”

Article 377 of the Indian Criminal Penal Code read that “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.” This law, which criminalized consensual same sex relations, was framed in 1860 by the then British colonial government in India. It has been used widely across India to oppress and extort money from people involved in same-sex relations.

While the law speaks about sodomy, it has also been used against women in same sex relationships. Malobika is the founding activist of Sappho For Equality, the first organization in Eastern India for lesbians and transgendered people. She recalls that when she wanted to rent a house with her partner they had a tough time. When they finally found one, they were thrown out when the owner discovered their relationship. They also had trouble opening bank accounts jointly. Both marriage and adoption remain dreams.

Though the country has recorded a couple of lesbian and gay marriages, these cases are, however, few and far between.

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Persecuted both socially and legally since the 1860s, same sex couples in India have a legal beginning for equal rights. Photograph by flickr user nickjohnston used under Creative Commons licenses.

The southern Indian state of Kerala, for instance, has reported numerous cases of lesbian suicides. Shunned by their families, friends and colleagues when they “came out,” suicide seemed the only available option.

For transgendered people like Parween from Bangalore, Article 377 has been a terror. Born a biological male with a “female heart,” Parween eventually underwent a sex change operation. “The police would pick me up whenever they found me alone, take me to the police station, take away my money, rape me and then let me go.” Parween now works with Sangama, another organization that works for the rights and empowerment of LGBT groups in Bangalore.

For all these women, the decision of the Delhi High Court has come as a great respite.

“It is not perfect, it is just a reading down – it only decriminalizes the act, it does not give sexual minorities any rights,” cautions Malobika, but she is optimistic. “At least it opens up a legal and official debate. Now there is official acknowledgment that sexual minorities exist and this opens up the doors to greater advocacy, and rights like same sex marriages, adoption, inheritance and security for us.”

Of course, the journey towards equality has just begun and the road ahead seems fraught with challenges. Already counter-petitions challenging the court’s judgment have been filed by various groups and individuals opposing the law. Allegations have been made that the law will render children more vulnerable to sexual abuse, which legal experts feel are unfounded. And the judgment has come from the High Court of Delhi, which does not have jurisdiction over the rest of India. It can, however, serve as a powerful legal precedence, and can influence future legislation.

The Ministry of Law, in a recent announcement, said that it will wait for the courts to frame the law. The community and their supporters are eagerly waiting and watching, cautiously hopeful for a new era of LGBT rights.

For those like Malobika, the judgement is “simply historical.”

About the Author
Aditi Bhaduri is an independent journalist and researcher based in India. With a background in international relations, specializing in the Arab-Islamic world (specifically the Israel-Palestine conflict), Russian linguistics, displacement and gender, she began her writing career by covering the Middle East for the Indian media. Currently Aditi’s work focuses on conflict, peace, displacement and gender. She acts as a gender consultant to various NGOs and started the Human Rights for Beginners program in schools in her native city of Kolkata. Aditi is also a member of several civil society initiatives in India and was on a Rotary Goodwill Exchange Program to the USA.

Aditi’s work has been published widely, both in Indian and foreign print and electronic media. She is currently co-editing a book on displacement in Asia-Pacific. She was awarded the UNFPA-Population First LAADLI National Media Award 2008 for gender sensitive reporting and hopes to establish her own publication dedicated solely to peace journalism.

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September 29, 2009 at 6:13 pm

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Ramdev wants to cure the world;refrains from debate on gay sex

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STAFF WRITER 11:13 HRS IST

M Karthikeyan

Little Cumbrae Island (UK), Sep 27 (PTI) Swami Ramdev, arguably the most popular teacher of yoga in the world, today said his aim was to heal the planet’s 6.5 billion people of illnesses but said he does not claim to have cure for cancer or AIDS.

"It will take 25-50 years (to cure all the people of the world) … I will stick around till then," he told reporters from the international media who were invited for an open day at the Little Cumbrae Island bought by his Patanjali Yogpeeth (UK) Trust to turn it into a wellness retreat.

Swami Ramdev, whose teachings of yoga is beamed into millions of Indian households everyday, said that he, however, does not claim to have cure for cancer or AIDS.

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September 28, 2009 at 12:27 am

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Many gays opting for sex change: Doctors

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Many gays opting for sex change: Doctors

September 24th, 2009 – 2:31 pm ICT by IANS

http://www.thaindian.com/newsportal/health/many-gays-opting-for-sex-change-doctors_100251685.html

By Prashant K. Nanda
New Delhi, Sep 24 (IANS) Even as gay activism grows in India and some slowly find the courage to come out of the closet, many from the community – especially the well educated and well heeled in the cities – are opting for expensive sex change procedures, say doctors.

“You may ask why, but it is a fact that gays are going for a gender makeover these days. I have done several cases in Delhi and Kolkata,” Ashutosh Misra, a senior reconstructive surgeon here, told IANS.

“Between a gay couple, generally the feminine partner is changing her gender and becoming female. Though I have seen gays of many age groups, those in the 25-30 age group are the ones mostly going for it,” Misra said.

He said such clients were well educated and economically established. “They have good education and are capable of affording their own medical expenses.”

The doctor, who has been associated with several leading hospitals like Fortis and Rockland, said he has been getting at least two such cases every month.

“The whole process of gender change of such couples takes around one year’s time. First, a psychiatrist counsels both the partners and after that, if they decide to go ahead, we implant the breast first and the leave them to adjust with the new body part for a period of six months. Then the gender reconstruction takes place,” Misra added.

The cost of such a gender makeover is not less than Rs.250,000. He said out of 10 homosexuals who want to undergo a sex change – nine are those who want to become female.

“Eight or nine out of 10 such people want to become female,” he said, adding that male to female change is less difficult and less expensive as compared to the other way round.

Gautam, a gay activist in Delhi, said: “Society’s pressure is so much that some gay couples may be going for sex change to stay together. Though I don’t know of a particular case, this could be the reason.”

He, however, added: “There could also be some gender identity mismatch.”

Psychiatrists too say there is generally a gender identity disorder among some gays.

Sameer Malhotra, a senior psychiatrist in Delhi, said: “Many of these couples are committed but depressed about their image. Hence they go for this makeover. The gender identity disorder is a key factor.”

“Some of them believe they have a male body but a female soul. They face depression over a period of time by thinking about the image of their self. This is one of the reasons behind cross-dressing too,” he explained.

Malhotra said sometimes such couples go for a makeover to live a normal life. “I have got people of all age brackets. Members of this community who are as young as 16 and as old as 50 take medical help.”

Gay activism has been growing in India, forcing many to rethink social norms and the laws of the land.

In July, the Delhi High Court gave a landmark judgement by decriminalising homosexuality. This means police can no longer intrude upon or arrest adult gays having consensual sex. Though some civil society members have moved the Supreme Court against the verdict, the court had refused to suspend the high court verdict so far.

Gays across the country have been fighting to reduce the social stigma attached to them and organised several events to increase awareness about them. Colourful gay pride rallies for LGBTs (lesbian, gay, bisexual and transgender) have been held with great success in cities like Delhi and Bangalore in the last couple of years.

(Prashant K. Nanda can be contacted at prashant.n@ians.in)

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September 25, 2009 at 4:09 pm

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‘For a lot of people, it’s already too late’

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For a lot of people, it’s already too late’

The cabinet has cleverly taken itself entirely out of the decriminalization issue, says the gay rights activist

Samanth Subramanian

http://www.livemint.com/2009/09/17213556/8216For-a-lot-of-people-it.html?h=BNew Delhi: When the Union cabinet met on Wednesday to discuss a ministerial report on homosexuality, and when it took a decision to essentially not take a decision—to leave the final verdict to the Supreme Court—Ashok Row Kavi did not appear unduly surprised. “The cabinet has been very clever,” Kavi points out. “They’ve taken themselves out of it entirely.”

In July, the Delhi high court had ruled against the criminalization of homosexuality, as set down by Article 377 of the Indian Penal Code. Following the cabinet meeting on Thursday, information and broadcasting minister Ambika Soni had told reporters: “The cabinet decided to ask the attorney general to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgment of the high court.”

The final legalisation of gay sex, if and when it happens, cannot be undervalued in its importance.

“After all, you’re suddenly not a criminal any more,” Kavi, one of India’s first gay activists, and certainly among the most strident, says. But beyond the strictures of the penal code, there is still the challenge of wider social acceptance, which does not escape Kavi even today, at the age of 62. “My mother still tells my female friends: ‘Get pregnant. Then he’ll have to marry you.’”

Kavi is often cutting in his criticism of the middle class, “which refuses to accept truths that are right in front of it,” but he is no less severe on many sections of the gay community itself, which he says has failed to produce the leadership it needs.

“There are people in high positions in the corporate world who are gay. Four of Bollywood’s leading film directors are gay. But none of them say anything,” Kavi says. “I have nothing against having a good time, but when you come out of your fancy gay parties, you have to think about the larger world. There’s pressure to get married, there’s pressure to conform. So many gay men are leading double lives.”

Kavi was fortunate to recognize his homosexuality early—even in his early teens—and to have parents who accepted it. But when, fresh out of college, he joined the Ramakrishna Mission for 18 months to train to become a monk, “I was, in a sense, still running away.”

In another stroke of good fortune, though, his teachers at the mission gave him useful advice. “They said that the mission wasn’t a place to hide,” he remembers. “It’s a place to work out issues, but the world is the real stage.”

When Kavi was publicly outed, he gratefully remembers, it was not a brutal experience. After a night shift at his newspaper job in Mumbai, he and his colleagues were taking the last train back home. “A bunch of my gay friends also got on, and they started saying: ‘Oh Ashok, we missed you. That Navy guy we like so much was there’ and so on,” Kavi says. “My chief sub-editor, a conservative man, was sitting next to me for some time, but then he couldn’t take it any more. At one station, he got off and got into the next carriage. I tease him about it even today.”

As Kavi’s career in journalism progressed—he was among the first reporters in Bhopal after the Union Carbide disaster—so did his involvement in gay issues and support groups. In 1989, he resigned from The Week and started Bombay Dost, a newsletter for the city’s gay community, with a fellowship of Rs5,000 a month. At its peak, Bombay Dost reached 4,000 subscribers—but it was read by many times that number, its copies circulated avidly in the gay community.

“That magazine was an important tool to build the community, to do positive stories,” says Anjali Gopalan, founder of the Naz Foundation, a New Delhi-based AIDS awareness group. “The biggest issue till then was that there were no gay role models, and Bombay Dost highlighted such people. I don’t think there are any other magazines pitched at that level.” Bombay Dost suspended publication in 2002 but was reborn earlier this year.

In 1994, the subscriber base of Bombay Dost became the core of Kavi’s Humsafar Trust, a support and advocacy group that won a minor battle in simply being recognized as openly gay by Mumbai’s municipal authorities. “We got space in a municipal building—a space that hadn’t been used in seven years and was simply filthy,” Kavi recalls. “It took 20 bottles of acid to clean those floors.”

The role of activist must come naturally to Kavi, although he sometimes grumbles that it overshadows his previous professional work.

He is a voluble talker, forever buttressing his points with anecdotes and verbatim quotes of Swami Vivekananda, Michel Foucault, or various scriptures. Even with somebody he is meeting for the first time, he can warm very rapidly to a conversational level of comfort where he can express his various indignations as colourfully as he wishes.

It’s a valuable asset, and Kavi seeks that articulate quality even in trustees that Humsafar inducts onto its board.

Crucially, the criminal stain of homosexuality has prevented health authorities from accessing men who have sex with men (or MSMs), highly vulnerable to AIDS and other sexually transmitted diseases. That dire need spurred Kavi, three years ago, to join UNAIDS as a national technical resource officer. “At some point, you have to stop manning the protest lines and start collaborating with the government,” he says.

In Kavi’s view, the death toll of AIDS victims in India is thus a burden that Article 377 has to at least partially shoulder. Out of the 18 members of what he calls his “gay family” in Mumbai, 12 have succumbed to HIV. “So it’s all very well to celebrate (the high court ruling on) Article 377,” he says. “But for a lot of people, it’s already too late.”

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September 18, 2009 at 1:21 pm

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Activists welcome government’s stance on gay sex

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Activists welcome government’s stance on gay sex

Bombay News.Net
Thursday 17th September, 2009 (IANS)

Gay activists and lawyers Thursday welcomed the government’s decision to leave it to the Supreme Court to arrive at a view on decriminalising homosexuality among consenting adults, saying the stance is not ‘negative’ or ‘against them.’

‘I feel that the government is not interfering. This is a good stand. It is not negative because it implies they don’t oppose the high court recommendation,’ Ashok Row Kavi, a gay rights activist, told IANS.

Kavi stressed that the government had to consider views of both the majority and minority and its ‘decision is not going against the gay minority.’

‘It is a matter of constitutional morality. This will let us fight it out in court,’ he said.

The UNAIDS also welcomed the government’s stance.

‘Today the union Cabinet took a small but extremely important step in the fight against HIV and AIDS by upholding the rights of men to have sex with other men through not contesting the historic Delhi High Court ruling on 377,’ said a statement issued by Charles Gilks, UNAIDS Country Coordinator, India.

Agrees Lesley A. Esteves, journalist and gay rights activist.

‘I feel the government has studied and recognised that the Delhi high court judgment is a solid judgment and as per the Constitution. Hence, it is a broad and liberal stand,’ he added.

On Thursday, Information and Broadcasting Minister Ambika Soni announced that the ‘cabinet considered the report of the group of ministers and decided to ask the attorney general to assist the Supreme Court in every way desired in arriving at an opinion on the Delhi high court judgement.’

The announcement came after a meeting of the union cabinet chaired by Prime Minister Manomohan Singh.

Asked if the government was taking the safe way out on a divisive issue, Soni replied: ‘I don’t think you can take that viewpoint.’

On Aug 17, the Supreme Court had sought the central government’s view on decriminalising gay sex between consenting adults after lawsuits challenged the Delhi High Court’s order.

In a historical verdict, the Delhi High Court July 2 decriminalised gay sex, quoting Jawaharlal Nehru to emphasise the constitutional principle of ‘equal rights to all’ and equality of allbefore law.

It said section 377, a law from the British Raj era that says homosexuality and ‘unnatural sex’ is a criminal act, should be amended.

Gautam Bahn, gay rights activist and writer, also praised the government’s move.

‘The government quite smartly and strategically, through today’s decision, has cleared that they don’t oppose the Delhi High Court decision on decriminalising gay sex. The government decision will boost the judgment,’ he told IANS.

According to Majid Memon, a senior lawyer, the government took a right decision to leave it to the court to decide on the issue as it is a very sensitive subject.

‘This is a very sensitive issue which does not simply have a legal fallout but also has social, moral, institutional — as far as the institution of family is concerned. Public opinion is also of great importance as it is going to govern the private lives of individuals who are subject to laws in India,’ he said.

He also said there was a need for a debate on the subject before a final decision was taken.

Soli J. Sorabjee, former attorney general welcomed the government’s decision and said ‘it reflects broad mindedness and power of the government’.

But there were some voices of dissent.

Forty-four-year-old prince Manvendra Singh Gohil from Rajpipla in Gujarat, who faced flak for admitting that he was gay, said he had ‘expected the government to make more rational choices.’

Giving its landmark judgment, the high court said section 377 should be amended and any sex between consenting adults should be legalised.

What this judgment means is that police will no longer be able to intrude upon or arrest adult homosexuals having consensual sex.

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September 18, 2009 at 1:21 pm

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Centre non-committal on gay sex, leaves it to SC

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Centre non-committal on gay sex, leaves it to SC

Last updated on: September 17, 2009 14:55 IST

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Shying away from taking any stand on gay sex, the government on Thursday virtually left it for the Supreme Court to decide on the ‘correctness’ of the Delhi [ Images ] High Court order decriminalising homosexuality.

The Union Cabinet, chaired by Prime Minister Manmohan Singh [ Images ], considered the report of the three-member Group of Ministers formed on the issue and decided that Attorney General G Vahanvati will ‘assist’ the Supreme Court on it.

"The Cabinet decided to ask the attorney general to assist the Supreme Court in every way desired by it in arriving at an opinion on the correctness of the judgment of the High Court," Information and Broadcasting Minister Ambika Soni told reporters.

To a volley of questions, she repeated the same formulation of her statement and said the Supreme Court can decide if the high court was ‘right or not’ in decriminalising gay sex.

She refused to say anything more on the issue, maintaining that she was not authorised to explain further as the matter related to Cabinet proceedings.

The Cabinet decided against taking any stand on the issue to avoid getting caught in any controversy, a minister said, explaining why it was left for the apex court to take a view.

The Delhi High Court had passed an order about two months ago legalising sex between consenting gay partners, earlier considered a criminal act under Section 377 of the IPC.

Some religious bodies opposed it. A Christian organisation, a disciple of Yoga guru Ramdev and the Delhi Commission for Protection of Child Rights have approached the Supreme Court, which sought the government’s response by October 1.

The Supreme Court had earlier refused to stay the high court order, saying it would await the response of the government.

In view of the sensitive nature of the issue, the government set up a Group of Ministers comprising Home Minister P Chidambaram [ Images ], Health Minister Ghulam Nabi Azad [ Images ] and Law Minister Veerappa Moily [ Images ], to formulate a view on it.

The GoM was understood to have suggested that the government should not take a stand but leave it to the Supreme Court to decide.

Indicating the GoM’s view earlier this week, Moily had said the Cabinet should not be expected to take any stand as the government would only assist the Supreme Court in arriving at the ‘right’ decision.

"The decision has been already given by the Delhi High Court (decriminalising gay sex). The only question is certain appeals have been filed before the Supreme Court in which we (government) are not the party…the parties are petitioners and respondents. Our law officers will deal with the question," he had said.

© Copyright 2009 PTI. All rights reserved. Republication or redistribution of PTI content, including by framing or similar means, is expressly prohibited without the prior written consent.

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September 17, 2009 at 3:57 pm

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Delhi child rights panel moves apex court on gay sex

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Delhi child rights panel moves apex court on gay sex

Delhi’s child-rights panel on Tuesday moved the Supreme Court opposing a high court ruling decriminalising homosexuality, saying it would permit sex between men as young as 18.

The Delhi Commission for Protection of Child Rights (DCPCR) in its lawsuit pointed out that the laws of the land prevent men below the age of 21 from marrying women and even countries like the United Kingdom permit homosexuality between adults above the age of 21.

Admitting the lawsuit, a bench of Justice BN Agrawal and Justice GS Singhvi issued notices to the union government and the civil society Naz Foundation, seeking their stand on the Delhi High Court verdict.

The high court had in early July decriminalised gay sex between two consenting adults, acting on a lawsuit by the NGO Naz Foundation. The union government has so far not challenged the verdict.

Appearing for DCPCR, former additional solicitor general Amrendra Saran sought immediate suspension of the high court ruling, but the court slated the matter for hearing on Oct 1.

In its lawsuit, the DCPCR said it was "constrained to move the apex court challenging the high court ruling as the high court has failed to take into account various aspects related to homosexuality, which actually adversely affect the physiological state of a child".

The DCPCR lawsuit pointed out that for the purpose of consensual gay sex, the Delhi High court ruling has considered a person of age 18 years or above as adult.

"But it is pertinent to point out at this stage that the Sexual Offence Act, 1967 of the United Kingdom partially decriminalizes homosexual acts in private between two males, both of whom must have attained the age 21 years," said the lawsuit.

"So even in the society like England, the minimum age for homosexuality in private is 21 years," said the lawsuit, adding the Delhi High Court’s act of allowing homosexuality at the age of 18 years is "unjustified and without reason".

"In other words, the maturity and inability to comprehend the consequences of an act is not well developed in an individual of 18 years," said the lawsuit.

"Ironically, the high court ruling allows 18 year old men to indulge in homosexuality, while even the law of the land bars men’s marriage below the age of 21 and girl’s marriage below the age of 18.

"Even psychologically and physically, the age of 18 years is the age of changes and turmoil where the inquisitiveness and peer group pressure play a major role in the personality development of the child," said the DCPCR lawsuit.

The lawsuit said the high court appeared to be influenced by the fact that homosexuality has been legalized in some Western countries like the Netherlands, Canada, Belgium, South Africa, Norway and South Africa, which, however, are culturally very different from India.

The lawsuit contended that India and China, which are home to over two-fifths of the world’s population, have entirely different cultures.

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September 17, 2009 at 10:04 am

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