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India: Statements by citizens groups against Supreme Court ruling Re-criminalizing same sex relations

11 December 2013

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[updated on 14 December 2013]

[Posted below are four statements. The first one is by Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners; The second is by PUDR; The third is by PUCL; The fourth is by NAPM. Attached also is the Full Text of Supreme Court Judgment on section 377 Civil Appeal No 10972 of 2013 Suresh Kumar Kaushal v. Naz Foundation by G S Singhvi J. ]

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1. PRESS RELEASE - Black Day for Human Rights, Queer Rights

11 December 2013 at 13:40 hrs

[Release on Facebook at: https://www.facebook.com/notes/kamayani-bali-mahabal/press-release-black-day-for-human-rights-queer-rights/10153638917985179]

We are deeply disappointed at the decision of the Supreme Court in Suresh Kumar Kaushal v. Naz Foundation. The decision by overturning the historic Delhi High Court judgment which recognized that LGBT persons are full citizens of India, attempts to stem the tide of history. By overturning the Naz Foundation judgment, the Supreme Court has, in one fell stroke again reduced LGBT persons to the status of what the Delhi High Court memorably called ’unapprehended felons’. The judgment of the Supreme Court is a unconscionable blow to the dignity of LGBT persons who as per the Indian Constitution are entitled to equal treatment. It withdraws the protective arm of the constitution from LGBT persons and renders LGBT persons vulnerable to discrimination, violence and harassment.

It is a tragedy that this judgment forgets the vision of the founders of the Indian republic which was so eloquently captured by the Delhi High Court. By re-criminalizing LGBT persons the judgment ignores the spirit of inclusiveness which is the heart of the Indian Constitution as articulated by Jawaharlal Nehru. It equally abandons the principle of constitutional morality (ie majorities dont have a charter to discriminate against minorities purely because they are majorities) articulated by Dr. Ambedkar which is the cornerstone of a diverse and plural nation.

The judgment is thus a deep betrayal of the fundamental constitutional promise that the dignity of all citizens would be recognized and that equal treatment is a non negotiable element of the world’s largest democracy. In this betrayal of constitutional faith, the Court has shredded the very principles it has sworn itself to uphold.

This decision today along with the decisions upholding the emergency and legitimizing rape marks the lowest ebb in the illustrious history of the Supreme Court. In 1975 in ADM Jabalpur v. Shivkant Shukla, the Supreme Court upheld the declaration of emergency which deprived all citizens of the right to life in India. In 1979, in Mathuras case, the Supreme Court in effect declared that women who were raped should be disbelieved. In 2013 the Supreme Court has held that LGBT persons are not human beings whose dignity and life is violated by a colonial law.

Hard as this decision is and difficult as the road forward may be, we draw strength and inspiration from ordinary LGBT persons who will not allow this to affect the way they lead their lives. In the course of the last ten years or so, LGBT persons have begun to lead their lives openly and publicly proclaiming their claim to equal citizenship. The page of history has turned and no power on earth can deny LGBT persons the right to freedom, equality and dignity. Rights are not conferred by the Court, as the Naz judgment said, they are merely confirmed by them. The rights of LGBT persons cannot be taken by this decision.

We proclaim that in spite of the judgment of the Supreme Court, the only way the LGBT movement will go is forward and the arc of history though long will turn towards justice. We pledge to continue this struggle with re doubled vigour till such time that Section 377 is consigned to where it belongs - the dustbins of history.

11.12.2013, New Delhi

Issued by: Voices Against 377, Alternative Law Forum, Adhikaar and other petitioners including parents of LGBT persons, mental health professionals, academics and law professors.

Contact: Arvind 9980010933, Deepti 9899019750, Gautam, 9953951219, Rituparna 9999977272

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2.

Peoples’ Union for Democratic Rights (PUDR)

Press Release

11 December 2013

Re-criminalizing same sex relations - a blow to equality and dignity

The Peoples’ Union for Democratic Rights (PUDR) expresses deep disappointment at the Supreme Court ruling making homosexual relations between consenting adults an offence. In an affirmation of the rights of Lesbian-Gay-Bisexual-Transgender (LGBT) persons, the Delhi High Court in a landmark judgment in 2009 had de-criminalized consensual same- sex relations, taking it out of the ambit of ‘unnatural sex’ under section 377 of the Indian Penal Code. Ironically in a judgment delivered the day after the celebration of Human Rights Day, the Apex Court has delivered a body blow to the right to equality and the right to life enshrined as guaranteed fundamental rights.

When world over a struggle is being waged for more inclusivity and deepening sensitivity to vulnerable sections of society, the India Apex Court, ironically, has put the stamp of approval on discrimination and violation of the privacy and dignity of LGBT persons. Right to privacy and dignity are integral facets of the right to life under Article 21 of the Constitution. This ruling is likely to result in an increase in harassment of the LGBT community by the police due to the re-criminalizing of same sex relations.

We urge Parliament to take immediate steps to amend the law and de-criminalize consensual same-sex relations.

D. Manjit and Asish Gupta

(Secretaries)

(pudr at pudr.org, pudrdelhi at gmail.com)

www.pudr.org

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3.

PEOPLE’S UNION FOR CIVIL LIBERTIES

270-A, Patpar Ganj, Opposite Anand Lok Apartments, Mayur Vihar I, Delhi 110 091
Phone 2275 0014 PP FAX 4215 1459
Founder: Jayaprakash Narayan; Founding President: V M Tarkunde
President: Prof. Prabhakar Sinha; General Secretary: Dr. V. Suresh
E.mail: puclnat at gmail.com; pucl.natgensec at gmail.com

New Delhi: 12.12.2013

PRESS RELEASE: FOR FAVOUR OF PUBLICATION

PUCL Statement on SC Judgment reversing Naaz ruling of Delhi High Court

“Repeal S.377 IPC ! Use of s.377 IPC is itself an abuse!”

The People’s Union of Civil Liberties is shocked and expresses its deepest disappointment at the judgment of the Supreme Court in `Suresh Kumar Kaushal v Naz Foundation’ delivered on December 11th, 2013, reversing the Delhi High Court judgment of 2009 which had recognized that Lesbian, Gay, Bisexual, Transgender (LGBT) persons are full citizens of India.

We wish to point out that the key constitutional issue underlying the challenge of sec. 377 IPC, is that sec. 377 essentially discriminates between people on the basis of their sexual orientation thereby criminalizing same-sex relations. Thus by affirming the constitutional validity of the outdated section 377 of the IPC, introduced 153 years ago, the Supreme Court has once again reinstated a discriminatory law which violates the right to equality, privacy and dignity and the freedom of speech and expression of a section of the Indian citizens, by criminalizing same sex consensual relationships in private. The effect of the SC ruling has once again relegated LGBT persons to the status of `second class citizens’ because of their sexual orientation and reduced them to what the Delhi High Court evocatively referred to as ’unapprehended felons’.

The observations of the Supreme Court that in last 150 years there have been only 200 reported prosecutions is neither here nor there. Firstly, that there are only a few prosecutions is no reason to have a provision which is otherwise unconstitutional. Further, cases of harassment, victimization and torture of LGBT persons seldom translate into `reported prosecutions’. Thus PUCL wishes to point out that using the number of reported prosecutions as the basis for upholding constitutional vires of any provision is unreasonable and dangerous precedent.

The PUCL is of the opinion that the Delhi High Court judgment was legally robust when it held that section 377 was violative of Articles 21, 14, 15 of the Constitution. The key reasons put forward by the Delhi High Court for reading down sec. 377 IPC have unfortunately not been fully considered or answered by the Supreme Court while upholding the constitutionality of the provision. World over there is recognition that sexual preferences are not an aberration and need to be considered as part of a natural orientation. It is with this progressive understanding that even Britain, from where sec. 377 IPC originated, has repealed such ante-diluvian provisions and is in the process of legalizing same-sex marriages. In the ultimate analysis medieval morality appears to have prevailed over constitutional guarantees.

The SC court erred in concluding that mere abuse of a penal provision does not warrant declaring it unconstitutional. In stating this, the court lost sight of the fact that in the instant case the use of S. 377 against consenting adults is itself an abuse. PUCL in its report `Human rights violations against sexuality minorities in India’ as far back as 2003 (http://www.pucl.org/Topics/Gender/2003/sexual-minorities.pdf) has documented the persecution, torture and atrocities faced by LGBT community at the hands of the State for the sole reason of their sexual orientation. Such persecution is legalized and therefore legitimized by the existence of S.377 IPC in the statute books. The SC has unfortunately added the weight of its authority to such persecution! In PUCL’s view, the judgment will therefore only strengthen the homophobic mindset which exists in a section of Indian society.

PUCL reiterates its position that sec. 377 IPC should be repealed and does not have a place in the law books of a modern India.

PUCL also calls upon political parties to undo the historic injustice done to the LGBT community and immediately repeal S 377 IPC in the current session of Parliament itself.

Prabhakar Sinha, President
Dr. V. Suresh, National General Secretary, PUCL
Kavita Srivastava , National Secretary


Dr. V. Suresh,
National General Secretary, PUCL - People’s Union for Civil Liberties,
270-A, Patparganj, Opp. Anandlok Apartments,
Mayur Vihar - I, Delhi 110091, India.
Ph.: +91-11-22750014; (Fax): +91-11-42151459.
Personal: +91-9444231497.

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4.

NATIONAL ALLIANCE OF PEOPLE’S MOVEMENTS
National Office : 6/6 Jangpura B, New Delhi – 110 014 . Phone : 011 2437 4535
E-mail: napmindia at gmail.com | Web : www.napm-india.org

For Immediate Release

14th December, 2013

Apex Court verdict re-criminalizing consensual same sex relationships unconstitutional and inhuman

NAPM demands legal recognition of the natural right to life and love of lakhs of gender diverse individuals

New Delhi, December 14 : As lakhs of individuals and groups across the country, celebrated the 4th anniversary of the historical judgement by Justice (Retd). A.P. Shah and Justice (Retd). Muralidharan of the Delhi High Court, recognizing the natural right to life and life of gender diverse persons on the International Human Rights Day, the verdict of the Supreme Court, just a day after, on 11th December, comes as a serious blow to and blot on the Constitution of India which guarantees social, political, economic and cultural equality to all citizens and upholds the dignity of every individual as sacrosanct.

In a unjustifiable order, the Apex Court, overturned the Delhi High Court’s Judgement which held Section 377 of the Indian Penal Code to be unconstitutional and upheld the right to consensual sexual relationships of lesbian, gay, transgender, bi-sexual and other gender variant individuals. Drawing from Gandhi, Marx and Ambedkar, the Delhi High Court judgment re-introduced the idea of inclusivity, which is at the heart of the Indian Constitution. The Supreme Court’s verdict rejecting the High Court’s judgment is blow to the lofty constitutional values and inalienable fundamental rights.

We, at the National Alliance of People’s Movements are deeply disturbed by this retrograde move of the Supreme Court, an institution, which continues to enjoy the faith of millions of people of this country and is looked upon as a beacon of hope in our democracy. We are of the clear opinion that the not just Section 377, but even the present order of the Apex Court, is in stark violation of Articles 21, 14 and 15 of the Constitution and will be challenged by all progressive forces of this nation, through the Parliament and also on the streets.

We also strongly think that struggle of gender diverse individuals is not just for the right to consensual sexual relationships, but is for their very right to life and is inseparable from their personal, political, emotional and social well-being. It is not just a ‘personal issue’, but an intense issue of political and human justice, which every one of us are deeply concerned about. For gender variant persons, every day is a struggle and we stand by the brave community of gender variant people who face violence and discrimination at homes, in the society and in their dealings with the State.

We would also like to note that any agency of the State, including the Judiciary, does not have the right to interfere with the right to life of any individual, except in accordance with law, that must be based on a clear constitutional premise. The right to live ones own life with dignity and without interference with the rights of others or without any disturbance to the society cannot be taken away by any law of the legislature, Parliament or order of the Courts.

In a State and society, which is not outraged enough even after the rape of thousands of women, where women and other gender diverse individuals still do not have the real freedom to move and express safely, where tribals gets displaced from their traditional land and resources in the name of ‘development’, where thousands of struggling urban poor are under-paid, sleep on the pavements, where a whole community gets killed because of their religious identity, violence on lakhs of gender variant individuals cannot be perpetuated in garb of ‘abstract morality’ !

This is neither a moment of sorrow nor defeat. It’s a moment for collective reflection and action, for us, as a nation. Just as thousands of farmers, adivasis, fish workers, labourers and others, refused to accept ‘defeat’ after the Supreme Court’s Judgement on Narmada in 2000, and intensified their legal and mass struggle for the right to life, the community of gender diverse individuals also shall stand up in this moment and assert their right to life, which is integral with the Constitution of India.

Continuing with the resolution adopted at our 8th biennial convention in Badwani, Madhya Pradesh, (given below after this statement) NAPM joins hands with our friends celebrating diversity, plurality calls for a rainbow of resistances against injustice and violence. We also urge the gender diverse community to join hands with other social and political movements to built a nation beyond caste, class, creed, gender, race, religion and regional differences and challenge corporatization, communalism and corruption in every walk of life.

NAPM also urges and demands the Indian Parliament of India to completely remove Section 377 from the IPC, uphold the right to life of all gender diverse individuals and enact a comprehensive law for their social, political and economic well-being. UPA govt. should take urgent step to save LGBTQ rights file review petition in Supreme Court immediately .

Resolution on the LGBTQ Issues adopted at 8th bi-ennial Convention of NAPM, Badwani, October 26, 2010

We oppose persecution and discrimination on the basis of sexuality and gender orientation in all forms and strive towards full social and political equality of all individuals who identify as Lesbian, Gay, Bisexual, Transgendered, Intersex and Queer (LGBTQ).

While welcoming the July 2nd 2009 judgment of the Delhi high court to decriminalize homosexuality NAPM recognizes that the LGBTQ community continues to be discriminated against in schools, colleges, workspaces, homes, the streets and before the law. We affirm that sexual orientation and gender identity are innate and cannot be consciously changed and we oppose attempts to convert LGBTQ individuals into heterosexuals or force them to conform to dominant notions of masculinity or femininity on the grounds of morality, religion or nature. We call for an official recognition of the LGBTQ community and demand changes in policies and laws that guarantee their rights not only to identity and dignity but also to welfare, protection from persecution and self-determination. These include affirmative action to ensure equal opportunity for LGBTQ individuals in relation to education, employment, health, housing, livelihood and people oriented development. We strive to ensure that the LGBTQ community joins the political mainstream on the same level as other groups in society and value the empowerment and participation of the LGBTQ community in all fields including organizing within our own movements.

Therefore, we also call upon the movements, constituents of NAPM and other concerned friends to move towards greater sensitivity and awareness on LGBTQ issues; by incorporating greater inclusiveness of LGBTQ voices, perspectives and concerns to the understanding of our struggles and the framing our demands. NAPM affirms that this is the way forward in the alliance building process we set out to do sixteen years back. More importantly it is the only way towards truly building a just society, which guarantees dignity, human rights, equality and people oriented development, which forms the heart of the struggles that come together in NAPM.

Medha Patkar - Narmada Bachao Andolan - National Alliance of People’s Movements (NAPM); Prafulla Samantara - Lok Shakti Abhiyan, NAPM, Odisha; Dr. Sunilam, Aradhna Bhargava - Kisan Sangharsh Samiti, NAPM, MP; Gautam Bandopadhyay – Nadi Ghati Morcha, NAPM, Chhattisgarh; Vilas Bhongade, Suniti SR, Prasad Bagwe Suhas Kolhekar - NAPM, Maharashtra; Gabriel Dietrich, Geetha Ramakrishnan – Unorganised Sector Workers Federation, NAPM, TN; C R Neelakandan – NAPM Kerala; Ramakrishnan Raju, Saraswati Kavula, P Chennaiah – NAPM Andhra Pradesh, Bhupender Singh Rawat,Rajendra Ravi, Anita Kapoor – NAPM, Delhi; Arundhati Dhuru, Sandeep Pandey - NAPM, UP; Sister Celia - Domestic Workers Union, NAPM, Karnataka; Sumit Wanjale, Madhuri Shivkar – Ghar Bachao, Ghar Banao Andolan, NAPM, Mumbai; Manish Gupta - Jan Kalyan Upbhokta Samiti, NAPM, UP; Vimal Bhai - Matu Jan sangathan, NAPM, Uttarakhand; Krishnakant, Anand Mazhgaonkar, Paryavaran Suraksh Samiti, NAPM Gujarat;Madhuresh Kumar, Seela M Mahapatra, Meera - NAPM

National Alliance of People’s Movements
National Office : 6/6, Jangpura B, Mathura Road, New Delhi 110014
Phone : 011 26241167 / 24354737 Mobile : 09818905316
Web : www.napm-india.org
Facebook : www.facebook.com/NAPMindia
Twitter : @napmindia

SEE ALSO:

Full Text of Supreme Court Judgment on section 377
Civil Appeal No 10972 of 2013 Suresh Kumar Kaushal v. Naz Foundation
by G S Singhvi J.
98 Pages | 11 Dec 2013