On Transgender Day of Remembrance (TDOR), Nov 20, 2018, we at Orinam honour the memory of Anannya Krishnan.

Anannya, a transgender woman, reached out to us in 2016 and joined one of our online groups, Gender Euphoria. Over the months, she grew more and more confident with disclosing and living in her true gender. She also emerged as a source of support to other young transgender people.

A pharmacologist by training,  she managed to land a corporate job  as a Drug Safety Associate: a job at which she was able to be out in the workplace.

She signed on to Sampoorna’s Open Letter of Sept 23, 2017 to the Parliamentary Standing Committee on the Transgender Persons Bill,  gave a public talk (TEDxNapierBridgeWomen, Nov 5, 2017,  and also spoke at a British Council panel discussion on Diversity and Inclusion on Dec 9, 2017, representing Orinam.

Her struggles to find a place to live, and the strife within her family, proved too much to handle, and she took her life on Dec 30, 2017.

On this day, TDOR 2018, Orinam and Diversity Dialogues dedicate our guide Transgender-Affirming Guidelines for Indian Workplaces to the memory of Anannya.

Anannya’s TEDxNapierBridgeWomen talk may be viewed below.

Note:
Some resources including suicide helplines are at https://new2.orinam.net/crisis-support

Senior Advocate Anil Divan, described by the Indian Express as “the conscience of the bar”[1] – passed away on 20 March, 2017.

Tributes have been pouring in for Mr. Divan’s contribution to many matters of public importance – his role as amicus curaie in cases concerning corruption at the higher levels of the bureaucracy and political leadership: the Jain Hawala case, the Chandraswami case, the Indian bank scam case – and his advocacy on behalf of Ram Jethmalani in the Black Money case. [2]

What has not been noted so far is Mr. Divan’s unstinting support to the LGBT community. While the LGBT community is more familiar with the name of Vivek Divan who has been a long standing queer activist, and Shyam Divan who has represented Voices Against 377, their father Anil Divan has been among the earliest supporters of the rights of the LGBT community.

Our struggle in court has seen some success, and has had its share of setbacks. One early setback was the Delhi High Court’s 2004 dismissal of Naz foundation’s challenge to Section 377 on the grounds that the challenge was merely ‘academic’, because Naz Foundation was not a person directly affected by the provision. Mr. Divan, acting pro bono publico – i.e., in public interest and without a fee – argued on behalf of Lawyers’ Collective and Naz Foundation, and asked the High Court to reconsider its decision. Lawyers present at that hearing recollect a hostile bench, unwilling to admit it had erred. But those lawyers also recollect Mr Divan’s resolute, dignified and impassioned advocacy – a refusal to yield until every error in the court’s reasoning had been laid bare, and every opportunity given to the Bench to remedy those errors. Although Mr. Divan was unsuccessful and that bench could not be persuaded to reconsider its decision, the Supreme Court was to subsequently overturn that decision and direct the High Court to rehear the petition. And it was at this rehearing that the High Court bench of Justices A.P. Shah and Justice Dr. S. Muralidhar were persuaded to deliver the celebrated Naz foundation versus Union of India judgment of 02 June 2009.

But Mr. Anil Divan’s support to the LGBT cause was not limited to in-court-advocacy. In 2005, he added his name to Vikram Seth’s open letter calling for repeal of section 377, and to an end to discrimination on the grounds of sexual orientation. He was one of only three Senior Advocates to do so.

And in October 2006, Mr. Divan detailed in the pages of The Hindu, in simple and clear language accessible to lay readers, developments in judicial understanding of sexuality rights as human rights, in Ireland, the United Kingdom, South Africa, Hong Kong, the United States, and the European Court of Human Rights. He referenced an opinion of a US Supreme Court judge that “only the most wilful blindness could obscure the fact that sexual intimacy is a sensitive, key relationship of human existence, central in family life, community welfare and the development of human personality”[3] and then said:

‘India must march in step with other democracies on this human rights issue. It must emulate the sentiment of the European Court that such restrictions on the most intimate aspect of private life are not necessary in a democratic society that values tolerance and broadmindedness.’

As a much-respected public intellectual, and an acknowledged scholar of constitutional law and public law, Mr. Divan’s newspaper opinion was of particular significance.

The High Court decision of Justices Shah and Muralidhar had upset approximately 150 years of judicial reasoning and precedent. Predictably, it was met with a flurry of appeals challenging it, and asking for it to be immediately and summarily stayed. Mr. Divan stepped-up again for the LGBT community to argue that to stay the judgment would cause irreparable harm to the lives and the dignity of the many whom the High Court judgement had decriminalised. This time, however, he was joined by several other Senior Advocates. Stay was refused and the High Court judgment remained in operation for four years until it was overturned by the Supreme Court on 11 December 2013, in Suresh Koushal vs Naz Foundation.

Mr. Divan’s commitment to the rights of the LGBT community was a part of his broader commitment to constitutional principles and the rule of law. That commitment was on display when he resisted before the Supreme Court, the central government’s claim that it could pay less than minimum wage for work performed under the Mahatma Gandhi National Rural Employment Guarantee Act (‘MGNREGA’). That claim had been rejected by the Karnataka High Court and the central government was challenging the Karnataka High Court’s decision before the Supreme Court. The union government threw its weight behind that challenge and had its highest ranking law officer – the Solicitor General (SG), represent it. After the SG had made a forceful, persuasive, and compelling argument for staying the High Court judgement, referencing the limits of the state’s financial capacity, the intentionality behind the Employment Guarantee Act, the likelihood of a mismatch between budgetary allocation and minimum wage, et cetera, the bench seemed convinced of the need to stay the High Court’s judgement. More worryingly, the first hearing of the case was happening on a ‘miscellaneous day’, on which days most cases are dealt with in a matter of minutes, and the SG appeared to have used-up all the time and patience that the bench had for one case. By the time the SG was winding down his arguments, stay of the High Court judgement seemed a foregone conclusion: until, that is, Mr Divan rose to his feet and boomed – “You will not pass any orders until you have heard me”. Mr Divan then proceeded to conduct a masterly exposition of 45 years of the Supreme Court’s minimum wage jurisprudence, with barely an interruption, from bench or from adversary. When he was finished, there was no doubt that the SG’s request for stay of operation of the High Court judgement was not to be granted.

Mr. Divan’s respect for constitutional principle made him a watchful critic of the High Courts and the Supreme Court. He is quoted as having said ‘India is like a mini-Europe. There is great diversity. And what keeps this diversity together is our judiciary. Is it then not important that it be kept independent and separate from the executive?”[4]. And so, when Parliament’s attempted fix of the broken system for the appointments of Judges to the High Court and the Supreme Court, seemed to tamper with the core tenet of impendence of the judiciary Mr. Divan represented the Bar Association of India, challenging the constitutionality of the parliamentary solution. It is reported that Mr. Divan’s arguments weighed substantially with the Supreme Court when it struck down the amendments to the Constitution that provided for the National Judicial Appointments Commission.

For the better part of the life of the Indian republic, the Supreme Court had held that parties who had finally lost their cases before it, could ask for the decision against them to be reconsidered/ reviewed by that court only once, and that too, only on very limited grounds. By that standard, after the Supreme Court had, by an order passed on 28 January 2014, refused to review its 11 December 2013 judgement reversing the Delhi High Court judgement of Justices Shah and Muralidhar, the challenge to the constitutionality of section 377 would have ended. In a landmark decision in April 2002 however (Rupa Ashok Hurra vs Ashok Hurra), the Supreme Court had declared that when it had been established that a judgement rendered by it had resulted in a “gross miscarriage of justice”, “it would not only be proper but also obligatory both legally and morally to rectify the error”. This judgement was based on a careful and studied review of the jurisprudence of several other countries as well as the Supreme Court’s practice over the years. The Supreme Court was assisted in reaching its conclusion by the erudition of a handful of its most respected senior advocates, among who was Anil B. Divan. And it is this decision, arguably creating an entirely new source of power in the Supreme Court, which has allowed the Supreme Court to reconsider its unfortunate decision in Suresh Kumar Koushal v. Naz Foundation, because that decision resulted in a “gross miscarriage of justice”.

In his preface to a collection of his essays “On the Front Foot”, Anil Divan stated that the book aimed at illuminating the spirit of courage displayed when, in moments of crisis, people have chosen to “stand up and be counted”. After a quick listing of some such moments and persons, the preface narrates an incident reported from Robben Island prison, during South Africa’s apartheid years. The story goes that the complete works of Shakespeare were smuggled into Robben Island prison, and the book was surreptitiously circulated amongst prisoners, and each was asked to mark their favourite passage. Nelson Mandela – reports Mr. Divan – marked out Caesar’s words “Cowards die many times before their deaths. The valiant never taste of death, but once”. Having narrated Mandela’s preferred quotation, Mr. Divan closed his preface with these words:

“Each generation reaches its finest hour by inspiring the next, by sharing its priceless experiences and courageous battles, in the never-ending struggle in support of the independence of the judiciary to uphold the Rule of Law, founded on Human Rights.”

In his courageous battles, in his struggles to support the independence of the judiciary, and in his striving to uphold the rule of law and human rights, Mr. Divan’s life is the finest hour of his generation, an inspiration to the next.

Lawyers representing Voices Against 377 in the Delhi High Court and Supreme Court

References

[1] (http://indianexpress.com/article/india/conscience-of-the-bar-anil-divan-dies-at-86-4578244/).

[2] http://www.livelaw.in/india-lost-great-lawyer-tribute-anil-divan-ram-jethmalani/, http://barandbench.com/senior-advocate-anil-divan-no/, http://www.legallyindia.com/home/anil-divan-legendary-senior-counsel-pil-pioneer-died-today-20170320-8355, and http://www.outlookindia.com/newsscroll/senior-advocate-anil-divan-passes-away/1010753.

[3]http://www.thehindu.com/todays-paper/tp-opinion/human-rights-versus-section-377/article3059822.ece

[4]http://barandbench.com/senior-advocate-anil-divan-no/

We condole the demise of a member of the Chennai queer community on Sept 20, 2014,  a week short of his twentieth birthday. Although the cause of his decision to take his life was not known, we believe he was driven to do so by the collective apathy and hostility of the larger society that we live in, a society that  alternately denies our existence and  punishes those of us who do not conform to stifling norms around gender and sexuality.

We cannot help thinking – if only he had not chosen to end his life but reach out to the community, it is possible that he would have found support and courage to tide over the difficult period in his life. Or, had he indeed tried to reach out, and failed to find an empathetic ear? As we stand in condolence with his family and friends, we are also shocked at the fragility of life.

Let us remember we can always reach out before crisis strikes. Let us look out for signs in ourselves and in people close to us. Let us reach out ourselves or refer those in need to individuals and organisations for peer or professional counselling support.

And, as we mourn his unmade dreams and desires, let us resolve to root out harassment and hatred, for it crushes us.

At this moment, we also reiterate that taking one’s own life is not the answer. Life gets better only if we stand with each other, acknowledge and embrace our differences.

Join us at the remembrance gathering on Sep 28th, 5 PM – near Kannagi statue at Marina beach, Chennai.

You are not alone. We are here to listen to you! Reach out to us. Visit our crisis support page.

And remember, life gets better.

Former Attorney General Goolam Vahanvati’s passing away on 2 September, 2014 marks a moment of sadness for the LGBT community. Mr Vahanvati will be remembered  fondly for  his sensitive advocacy against  Section 377  of the Indian Penal Code.

As a representative of India before the the United Nations Human Rights Council, Mr Vahanvati acknowledged that it was homophobia – not homosexuality – that was a legacy of colonialism, and suggested that Section 377, was in part, enacted to deter Europeans who “came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct.”

When the first appeals were filed after the Delhi High Court’s judgment, it was Mr. Vahanvati’s statement in the Supreme Court that the Union of India was examining the issue but in the meanwhile did not want a stay of the judgment that saved the High Court’s ruling for 4 more years. Ultimately, the government took the position in the Supreme Court that ‘there was no legal error in the judgment of the Delhi High Court’ and asked that the appeals against the High Court’s judgment be dismissed.

In the history of anti-sodomy law litigation throughout the world, it was perhaps the first time that a national government had taken the line that its own law was unconstitutional.

Mr. Vahanvati presented this viewpoint before the Supreme Court with his customary skill backed up by meticulous research. Mr. Vahanvati’s written submissions on behalf of the Union of India, based on extensive research, again made the point that Section 377 was a colonial imposition and was enacted out of patently racist assumptions of ‘native’ sexual behaviour.

However, this unambiguous position of the Union of India did not convince the bench  who  kept pressing Mr Vanhavati as to why the Union of India had supported the retention of Section 377 in the High Court but had taken the opposite position in the Supreme Court. Mr Vahanvati replied that that  the ‘government also learns and after the[Delhi High Court ]judgment there was subsequent enlightenment.’

The December 11, 2014 judgment in Suresh Kumar Koushal, upholding the constitutional validity of Section 377  triggered widespread outrage and the Union Government decided to file a review petition challenging the Supreme Court judgment. The petition was settled by Mr. Vahanvati and had 76 grounds for review.

Among the review grounds, notable for its sensitive understanding of the impact of the judgment was one which read,

“Following the High Court judgment that decriminalised adult consensual sexual acts in private, including homosexual acts, a considerable number of LGBT persons had become open about their sexual orientation and identity in their families, workplaces, educational institutions and public spaces, amongst others. All those people suddenly have become vulnerable to abuse and discrimination and require immediate relief. ”

While the Government that Mr. Vahanvati represented had clearly learned from the High Court’s judgment, the Supreme Court had not, and unfortunately the review petition was dismissed.

After the Supreme Court’s December 11 judgment, Mr Vahanvati went beyond the call of duty and  did something unprecedented in the 377 case. He penned an open letter where he stated that he ‘belongs to the school of thought which believes that an Attorney General must be heard in court and not outside it’ and yet he felt he had to express his opinion on the Koushal judgment because of the ‘importance of the matter’ and because  the judgment had caused ‘widespread anguish and heartache across the country’.

After reiterating the point that Section 377 – not homosexuality –was a western import he concluded with words which still remain meaningful.

‘The world has moved on. It is fast changing. Perceptions have changed. Attitudes have changed. Law does not and cannot remain static. Whenever necessary, the Supreme Court has reflected changed perceptions of the law and has struck outmoded laws down. They did so when striking down rent control laws as socially irrelevant. They also did it by breathing fresh life into Article 21, protecting life and personal liberty. They did it by consigning the archaic judgment in A K Gopalan vs State of Madras, rendered in 1950, into the dustbin of history. Unfortunately, they declined to give a similar treatment to Section 377. Therein lies the tragedy.

One hopes that the LGBT community has more such champions of empathetic  reasoning as Mr. Vahanvati and the ‘colonial legacy’ is finally removed from our roster of  ‘lawless laws’.

Read Vikram’s tribute here.

Goolamhussein Essaji Vahanvati, the 13th Attorney General of India, passed away on September 2, 2014, from a heart attack, at the age of 65. He served in office from June 2009 to May 2014, and was much in the news in the last years of the previous government, particularly for having to defend some dubious legal decisions. We remember him as a supporter of decriminalisation of homosexuality, both from before he became A-G and while he was serving.

In 2008, when he was solicitor-general, Vahanvati spoke before the UN Human Rights Council, trying to argue that India’s homophobia was a colonial relic [see ref, courtesy Aditya]. He stated, “Around the early 19th Century, you probably know that in England they frowned on homosexuality, and therefore there are historical reports that various people came to India to take advantage of its more liberal atmosphere with regard to different kinds of sexual conduct… [a]s a result, in 1860 when we got the Indian Penal Code, which was drafted by Lord Macaulay, they inserted Section 377 which brought in the concept of ‘sexual offences against the order of nature’.

In another piece he wrote in the Asian Age (hat tip to Nitin for posting it on the GB list long back) before he became A-G and while we were fighting the matter in the Delhi High Court, he stated “People have the right to lead their lives, privately, so long as they do not affect others… [I]n our country the right of persons to live their lives privately and on their own terms may take quite some time to achieve recognition. There are several sections in the Indian Penal Code which are anachronistic in a changed world. Section 377 is a prime example.”

The Union of India was against us at that time and it is significant that Vahanvati, who was a well known senior lawyer, was willing to take a public stand at that time.

When he became A-G I remember hearing speculation that he would not stick to his earlier stand when the matter came up in the Supreme Court. He was the first Muslim A-G and there were rumours he was under pressure from fundamentalist quarters not to support LGBT rights. And it did seem that was in the first chaotic days of the Supreme Court of India arguments when the government lawyer who had opposed us in the High Court got up to reiterate the arguments.

Almost immediately another government lawyer got up to say that he was wrong, but the damage was done and the judges were annoyed and demanded the A-G come to clarify matters. I remember we speculated he would not and just avoid the case, but to Vahanvati’s credit he came towards the end and fully supported us and said the law needed to change. Sadly, the judges didn’t listen to him.

Two days after the infamous 11-12-13 decision of SCI, Vahanvati wrote a strong piece in The Times of India titled “Law can’t remain static: Government told SC that Section 377 didn’t reflect Indian values”.  Some excerpts:

” I belong to the school of thought which believes that an Attorney General must be heard in court and not outside it. However, there comes a time when an exception has to be made. I believe this is one such time. Given the importance of the matter and widespread anguish and heartache across the country, i feel that i must depart from this self-limitation to set the record straight and to explain the stand taken by the government in the Section 377 case.

“In my written submissions, therefore, I clearly and categorically stated: “Accordingly, it is submitted that the government of India does not find any legal error in the judgment of the high court and accepts the correctness of the same. This is also clear from the fact that it has not filed any appeal against the judgment of the high court.”

“The concept of intercourse against the order of nature is troublesome. It raised further questions: “What then is the order of nature?” and “What is against the order of nature?” Is it not conceivable that what was perceived to be against the order of nature in 1860 may not subsequently be perceived to be against the order of nature particularly in view of a change in society’s understanding or tolerance of that thing?

“The world has moved on. It is fast changing. Perceptions have changed. Attitudes have changed. Law does not and cannot remain static. Whenever necessary, the Supreme Court has reflected changed perceptions of the law and has struck outmoded laws down. They did so when striking down rent control laws as socially irrelevant. They also did it by breathing fresh life into Article 21, protecting life and personal liberty. They did it by consigning the archaic judgment in A K Gopalan vs State of Madras, rendered in 1950, into the dustbin of history. Unfortunately, they declined to give a similar treatment to Section 377. Therein lies the tragedy. ”

RIP Mr. Vahanvati, we will need more allies like you.

A tribute from lawyers Mayur Suresh and Arvind Narrain is here.

Justice Verma passed away yesterday and will be remembered by the queer community for more than one reason.

First of it is his order as the head of the News Broadcasting Standards Authority against TV9 for their programme “Gay Culture Rampant in Hyderabad”. Taking suo moto (on its own motion) cognizance of the matter, he passed an order directing TV9 to pay a fine of Rs.1,00,000/- and to telecast a public apology for three consecutive days, both in English and Telugu.

In his order, Justice Verma notes, “In effect what the content of the Programme clearly did was; instead of carrying a “crime story” it merely carried evidently a gratuitous depiction and reportage of homosexuality among men without any underlying serious message for the society; the Programme needlessly violated the right to privacy of individuals with possible alternate sexual orientation, no longer considered taboo or a criminal act; and the Programme misused the special tool of a “sting operation” available only to subserve the larger public interest”.

The second of the reasons would be the immense contribution that the Committee headed by Justice Verma made in addressing sexuality concerns while recommending changes to rape laws. The report inter alia recommended that sexual assault be made gender neutral thus understanding the gendered nature of sexual violence. A detailed analysis of the Verma Committee Report by Orinam is available here.

Finally, Justice Verma authored the landmark judgment in Vishaka vs. State of Rajasthan wherein he held that sexual harassment at the work place is violative of the right to equaity of women. He has been a strong proponent of judicial accountability and also ably chaired the National Commission for Human Rights. His career is a reflection of his belief in human rights. He will be remembered most for his actions that uphold this conviction.

The best tribute to him would be to implement the recommendations of the Verma Committee Report in toto and to uphold human rights for all.

Anil Sadanandan (who also went by Mariya) was a trans activist living and working in Kerala, India. S/he was a vocal, queer activist who was open about her identity both in the media and at events like Kerala Queer Pride.

On May 10th, Anil/Mariya was brutally murdered. Accounts detail that they sprinkled chilli powder on her, presumably to keep away the police. We, her friends, family and those who knew her vibrant spirit — mourn her loss.

Anil’s murder is a brutal signal from the murderous homophobic patriarchy that trans people/queer people/ non-conforming persons of all kinds have no right to live, much less live with equality and dignity. We cannot let this horrible injustice be quietly erased. The one’s whose bodies and lives are the most vulnerable are also the ones who do most of the fighting. In Solidarity. For Justice.

Media coverage:

• NewsNET East: Murdered Trans- activist faced hate from neighbours, May 11, 2012
• NewsNET East: Mystery, Panic shrouds Queer activist’s Murder, May 11, 2012
• AsianAge: Gay rights Activist Murdered, May 11, 2012

 Take Action:

•  Justice for Maria group on FB – In solidarity. For Justice. For Maria/Anil.
• Please leave your tribute as comments below

This message was initially posted by Sumathi on Facebook and has been republished with her consent.