The Anti-Discrimination and Equality Bill, 2016 (“ADE”) was introduced in the Lok Sabha on the 10^th of March, 2017, by Dr. Shashi Tharoor as a private member Bill. Dr. Tarunabh Khaitan, Associate Professor of Law at the University of Oxford has advised with respect to the contents of the Bill. According to an interview by Dr. Tharoor, 4% of private member Bills move on to the discussion stage. As of now, we do not know whether the ADE will move to the discussion stage. The protections provided under this Bill will apply to many different kinds of social markers. However, in this short article, I will try to lay out broadly how the ADE would affect the LGBT (lesbian, gay, bisexual and transgender) community and those perceived to belong to this community. For the remainder of the article, any mention of the LGBT community should be read as including both these categories, as is also the intention of the Bill.

1. Protection from Sexual Orientation and Gender Identity Discrimination

The ADE is a comprehensive anti-discrimination Bill that seeks to provide all citizens of India protection from various forms of social discrimination (Preamble) from both the government and a set of private bodies (employers, landlords, shopkeepers, public contractors etc.). Therefore, several social markers such as caste, race, ethnicity, descent, pregnancy status, skin tone, food preference, HIV status, disability, marital status etc. which also form the bases of different kinds of discrimination in society are categorized as protected characteristics under this Bill. A protected characteristic is a characteristic on the basis of which one cannot be discriminated against. Sexual orientation and gender identity are also categorized as protected characteristics. Therefore, the most important feature of this Bill in the context of this article is that it provides protection from sexual orientation and gender identity related discrimination to citizens of India (S. 3(i) read with S. 14). Doubtless, it would include not only L, G, B and T persons but also persons who are gender fluid or gender queer, or do not identify with any particular identity category. However, by abundant caution, this Bill has stated that features which are, “either outside a person’s effective control, or constitute[s] a fundamental choice” are protected characteristics which cannot form the basis of discrimination.

2. Direct, Indirect and Aggravated Discrimination

A. Direct Discrimination

The Bill provides protection from direct, indirect and aggravated discrimination. Direct discrimination would arise when there is a rule or practice which is motivated by prejudice/stereotype or intends to harm people on the basis of their membership to a particular group (S. 6). For example, if a blood donation centre forbids gay men from donating blood because they assume that every gay man has AIDS, it would amount to direct discrimination on the basis of sexual orientation. This would be a case of direct discrimination even if the blood donation centre can produce statistical evidence to show that a large percentage of persons with HIV/AIDS are gay men, or that a large percentage of gay men have HIV/AIDS.

B. Indirect Discrimination

Indirect discrimination would arise when sexual orientation or gender identity do not form the direct basis of discrimination on the face of it (S.7). However, if one digs deeper, one will find that the LGBT community suffers a disproportionate disadvantage under the rule. S. 377 of the Indian Penal Code, 1860 (“IPC”) is the classic example. On the face of the law, it does not discriminate on the basis of sexual orientation or gender identity. As per S. 377, “carnal intercourse against the order of nature” is criminalized. However, S. 377 is seldom used against the sexual acts of a man and a woman. It is used primarily to harass members of the LGBT community (Naz petition, paragraph 5). Therefore, such a law although equal in words, treats people unequally based on their real or perceived sexual orientation or gender identity and disproportionately affect members of the LGBT community (Naz Decision, Delhi High Court, paragraph 113). Therefore, such a law would qualify as indirectly discriminatory under the Bill.

Another example may be surrogacy laws which restrict surrogacy to married couples. Apart from being directly discriminatory on marital status, such a law could also be indirectly discriminatory against the LGBT community if it is shown that surrogacy is one of the chief ways by which members of the LGBT community (esp. gay men) become parents.

C. Harassment, Boycott and Segregation

This Bill also protects the LGBT community against harassment, boycott and segregation. Therefore, any communication which has the purpose of creating a bullying atmosphere for actual or perceived membership of the LGBT community would be unlawful under this section (S. 8). The example present in the Bill itself is that if a boy is called a “sissy” for refusing to play sports, such name calling would amount to harassment.

Any call to boycott or ostracize someone on the basis of their actual or perceived sexual orientation or gender identity would be forbidden under the boycott provision of the Bill. For example, if the school principal in the example above-mentioned directs all students to stop interacting with the boy, the principal would have committed the act of boycott under this provision (S. 9).

Segregation is said to occur under the Bill when, by use or threat of force or manipulation, a person is prevented from interacting, marrying, eating, living, socializing, visiting, being friends with, etc. with a LGBT person (S.10). For example, if a landlord informs a tenant that their gay friends cannot visit them and if they do, the tenant would be kicked out of the rented property, such threat would amount to segregation under the Bill.

Further false complaints of kidnapping under S. 366 of the IPC also amount to segregation under the Bill (S. 10(2)). Therefore, if the parents of one of the partners of a lesbian couple file a false case of kidnapping against the partner of their daughter, it would amount to segregation under the Bill (in addition to the offence of false information under section 182 of the IPC). Furthermore, this Bill provides that in such situations, if the partner, whose parents have filed the case, makes a reliable statement stating that the complaint is false, such statement would be sufficient to prove that the complaint is false even if she later retracts from that (S.10 (3)).

Whether such a reliable statement should be sufficient to prove a false complaint case, or whether it should just establish a prima facie false complaint case and shift the burden on the other party (the complaining parents in this case), is something that the Parliamentarians may take time to consider in the discussion phase, in keeping with the realities of how these complaints are made in the police station and principles related to the apportionment of burden of proof in similar cases.

Finally, any encouragement or facilitation of violence against members of the LGBT community would constitute discriminatory violence under the Bill and any public servant whose duty it was to protect from such violence and fails to do so would also be said to have committed discriminatory violence (S.11).

3. Diversification Allowed

This Bill allows the adoption of any rule or policy that will encourage the participation of the LGBT community in government, local authorities or activities of private persons performing public functions (for example, public contractors). Such diversification measures can include scholarships, special training programmes etc. Such diversification techniques would not be to the detriment of affirmative action measures that may already exist (S. 13 read with S. 14 (6)). Additionally, public authorities while making a rule will be required to give due regard to ending discrimination and the promotion of quality and diversity (S. 16).

4. On Whom Does the Duty of Non- Discrimination Lie?

The duty of non- discrimination flows from persons belonging, or representing persons in, category A to, persons in category B. Persons in category A are 1. Employers, 2. Landlords, 3. Traders, 4. Service providers, 5. Public authorities; 6. Private persons performing public functions. Persons in B are 1. Employees; 2. Purchasers or tenants, 3. Consumers; 4. Consumers; 5. Any affected persons; 6. Any affected person, respectively (S.14). A, or representatives of A cannot discriminate, directly or indirectly, or use discriminatory violence or boycott, harass or segregate, B.

Therefore, a landlord cannot refuse to rent property to transgender persons on grounds that they are transgender. Similarly, for other categories of A and B. Additionally, the landlord must also ensure that their employees like the house help etc. do not discriminate against the transgender tenant (S. 14(3)).

Inversely, the duty to not discriminate, harass, boycott etc. does not flow from B to A. Therefore, for example, an LGBT support group can put out a call on their Facebook page to boycott a particular food joint that has homophobic graffiti inscribed on its walls.

The duty of non- discrimination does not lie in personal relationships. For example, LGBT persons are not protected from discriminatory attitudes from their family members at home or discriminatory remarks from their friends or other personal relationships.

5. How Can these Protections Be Enforced?

A. Remedies Available

The protections provided under this Bill can be enforced by approaching the State Equality commission, a body proposed to be set up under this Bill (S. 31). The range of remedies available under the Bill are, apology, abandonment of discriminatory practice, diversity training, damages, normal and exemplary (this can go up to Rs. fifteen lakh), protection orders (which are like restraining orders) etc. (S. 33 and 34). Breach of a protection order can invite an imprisonment term of up to one year (S. 35(1)).

B. Who Can Bring the Claim?

As per S. 37, the claim can be brought by 1. the aggrieved person; 2. relative; 3. sexual or romantic partner; 4. organizations that represent the aggrieved person; or 5. with the permission of the central equality commission, any one aggrieved person acting on behalf of other aggrieved persons who have the same interest (for example, an LGBT activist challenging a particular law on behalf of all members of the LGBT community).

C. What Does the Aggrieved Person Have to Prove?

The aggrieved person (plaintiff) has to make out a prima facie case of discrimination. This means that the plaintiff will have to show that a particular rule or practice does in fact, mete out different treatment on the basis of sexual orientation or gender identity. Once the plaintiff shows this, the burden shifts to the respondent (employer, trader, government etc.) to show that such a discriminatory measure was instituted in good faith and as a proportionate means to achieve a legitimate end (S. 6(2) and 7(2)). However, there is no defence provided for segregation or boycott in the Bill.

D. Will S. 377 Pose some Practical Problems to this Bill?

The presence of S. 377 may pose some practical problems to the enforcement of the guarantees under the Bill. For example, a landlord may refuse to rent out property to a gay couple not because they are gay, but because their sexual act means that they would be engaging in criminal activity under the IPC. A landlord may refuse to rent out property to persons engaging in criminal activities. However, S. 36 of this Bill allows the High Court to strike down other laws incompatible with the provisions of the Bill. This could provide an opportunity for High Courts to consider whether S. 377 should remain on the books and provide another avenue for challenging this section.

6. Concerns

While there are several protections provided to the members of the LGBT community, there are some concerns that the Bill poses to the LGBT community. I will try to lay them out here.

A. Segregation, Boycott, Harassment Flows Both Ways

Recall that the duty to not discriminate, boycott, harass etc. flows from A to B (see part 4). As the Bill is written, A comprises people who provide services and B comprises people who receive services. Imagine a situation of a shop which is owned by a lesbian couple. While this couple may not discriminate against potential customers, customers may discriminate against this shop. They may not like to purchase goods from this shop. No one may enter this shop. The Bill does not provide a remedy in this situation.

A previous version of this Bill, The Equality Bill, 2016 accounted for such a situation. S. 14(2) of this version forbade segregation by anyone. The proposed Bill could be amended to this effect. However, the following question may still require discussion: how would such a provision be enforced? How could an order of a court get people to start going to this lesbian couples’ shop and who would be responsible for non- compliance with this order? Perhaps, such a situation cannot be remedied by a law. Equality and diversity education might be a more effective tool in such situation.

Imagine, inversely, that the shop of this lesbian couple is flooded by customers all of whom make extremely derogatory and discriminatory remarks about the sexuality of the women. The Bill does not make a provision for these shop owners to segregate these customers on the basis of this homophobic verbal harassment. In other words, the shopkeepers cannot prevent these homophobic customers from coming in especially because both, they bear the duty of non- segregation and non- harassment (and not the customers) and also because there is no valid justification provided in the Bill for segregation.

A previous version of this Bill, S. 14 of the The Equality Bill, 2016 perhaps accounted for such a situation when it forbade discriminatory violence by all people against members of a protected group (the lesbian couple, in this case). Perhaps this latest version could be amended accordingly.

B. Freedom of Speech and Expression May Come in Conflict with the Provisions of this Bill

Our constitution allows a vast and expansive freedom of speech and expression fundamental right. Accordingly, as per S. 14(5)(iv) of this Bill, any form of speech and expression (among other things) which is allowed under the constitution does not amount to discrimination. In our constitution, hate speech, with the exception of the SC and ST (Prevention of Atrocities) Act, 1989, is not forbidden. This means that one can say hurtful and hateful things about members of the LGBT community and this is not forbidden under the constitution unless some other conditions are met. These conditions can be, for example, that the public order is threatened (Art. 19(2) of the Constitution of India). In such a situation where the freedom of speech and expression allows a wide freedom on the one hand, and this Bill forbids the bullying, harassment and segregation of LGBT persons on the other hand, a conflict may arise over the constitutionality of the bullying, harassment and segregation provisions. If such a question comes before the courts, they may have to find a way to reconcile these provisions with the constitutional freedom.

C. Discrimination in Regard to Religion Allowed

Inversely, freedom of religion under the constitution is subject to the provisions of equality (and other fundamental rights: Article 25). In this regard by allowing discrimination when it comes to religion or religious places of worship (Schedule), this Bill may have provided a constitutional concession where one may not be required. Perhaps, this provision could be looked at once again in the discussion stage to determine its suitability in the Bill.

D. Doubtful Whether Protection Extends to Foreigners

The preamble of the Bill states that the Bill is designed to, “ensure equality to all citizens” whereas “nationality” is also a protected characteristic under S. 3 of the Bill. Therefore, one cannot be discriminated against on the basis of nationality under the Bill. However, S. 3 also mentions that protected characteristics apply only to “citizens.” This gives rise to an apparent contradiction and leaves doubtful whether LGBT foreigners in India will receive protections of the Bill. However, this is a minor ambiguity in the Bill and can be rectified by an appropriate amendment.

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/

A court does not confer Fundamental Rights; it confirms their existence. The right to dignity, liberty and equality is ours, as per the Constitution of India. But a law that is currently in our statute books prevents its citizens, in particular lesbian, gay, bisexual, transgender Indians, from realising these rights.

In July 2009, the Delhi High Court in its judgment on Naz Foundation versus Union of India, read down Section 377, which criminalizes non penile-vaginal intercourse, so that it did not apply to consenting adults. The judgment understood how this law made us felons because we express our sexuality in ways that Section 377, and society at large, deems “unnatural”, and that it discriminated against LGBT Indians. The High Court limited the scope of the law and “freed us”.

This freedom was short-lived. On December 11, 2013, the Honourable Supreme Court of India set aside the Delhi High Court judgment, ruling that only “a minuscule fraction” was affected by Section 377 till date, and that the Delhi High Court had been too anxious to protect our “so-called rights”.

On Tuesday, February 2, 2016 the Supreme Court will hear the curative petition that was filed against its judgment of December 2013. A bench of judges will decide whether the verdict is sound, or needs to be examined further. The petitioners, who include queer Indians, parents of LGBT persons, mental health professionals, academicians and filmmakers backed by lakhs of Indians, LGBT or not, will wait in hope that the unjust verdict will be undone.

Why the curative petition?

Before the Supreme Court gave its judgment of December 2013, the petitioners gave the court proof of how Section 377 was applied by the State, the police and several vested interests to torture, abuse and violate people’s lives and bodies. Yet, the Supreme Court judgment stated that: “The Section 377 IPC does not criminalize a particular people or identity or orientation. It merely identifies certain acts which if committed would constitute an offence. Such a prohibition regulates sexual conduct regardless of gender identity and orientation.”

You cannot separate an act from a person. If you regulate an act while refusing to acknowledge the prejudice that governs this regulation, then you extend the violence of such regulation towards the person committing those acts.

Sexual expression is at the very core of one’s personhood; to deem that certain kinds of sexual acts done by consenting adults in their private sphere should attract a sentence of life imprisonment therefore is a draconian statute for the entire citizenry and further it does criminalize “a particular people of a certain identity and orientation”.

Our legal battle has lasted over a decade. Through all these years, we have taken strength from our unwavering belief that we are right; our demand for our rights is part of the larger chorus of voices of disenfranchised Indians across the country asking that State and judiciary do right by them. Victor Hugo had once said, “Nothing can stop an idea whose time has come”. Equality, of gender, sexuality, between classes and castes, across regions and languages is the idea whose time has come!

We urge you to ask that this judgment, which denies us our right to liberty, dignity and equality, be corrected. Join us in asking for a more equal India.

Contact for more details:

• Ahmedabad: Dhaval Shah +91 90990 24458
• Chennai: Sivakumar +91 9840699776 (Tamil), Sankari +91 95518 37719 (Tamil), Srijith Sundaram +91 9884456460 (Tamil), Jaya +91 9841865423, Moulee +91 9176641289, Vikram +91 9245125290
• Delhi: Mohnish Malhotra +91 9891228951, Manak Matiyani +91 9560100255, manakmatiyani@gmail.com
• Guwahati: Abhishekh 9706041391, Minakshi 98642 20806, Sanjib 80110 17650
• Hyderabad:  Priyank 98862 02027, Dipankar 90008 75390
• Imphal: nupimanbi@gmail.com, santakhurai888@gmail.com, Santa Khurai +91 8415925251,  Pavel +91 9862906147
• Kolkata: Souvik Som +91 98305 56327, Pawan Dhall +91 98312 88023; Avinaba Dutta avinabadutta@gmail.com; Civilian Welfare Foundation info@cwforg.com
• Mumbai: Pallav Patankar +91 96190 12251, Lesley Esteves +91 98102 97743
• Nagpur: Anand Chandran +91 93256 32795

This letter is available in Hindi also.

This letter is available in Marathi also.

Download the English version of this letter.

On 11/12/15 which marks the second anniversary of the Suresh Kumar Koushal judgement of the Supreme Court of India, which effectively recriminalised LGBT persons, the union government needs to be reminded of its constitutional responsibility to decriminalise the lives of millions of LGBT citizens. The lives of LGBT citizens are not a political football to be tossed from the judiciary to parliament and from parliament to the judiciary. It is time the government owned its responsibility!

In this connection, the petition below argues that constitutional morality enjoins that the government takes action to repeal s.377.

The petition itself is available at the following link for your endorsement http://www.ipetitions.com/petition/mr-modi-repeal-s377-ipc-its-your

Please circulate  widely and get as many signatures as we can of groups and individuals from diverse backgrounds including persons from the fields of law, politics, activism, academia, artists and others.

For more information on Section 377 of the Indian Penal Code and the struggle to repeal it, check out the 377 archives at http://377.orinam.net/

The Court has been urged to do this by a huge outpouring of voices from the public expressed through mainstream and social media, in India and abroad, by different political parties, by voices from across civil society including several religious groups and, not least, by the government of India which has filed an extremely incisive brief pointing out many flaws in Justice Singhvi’s decision.

Lawyers for the LGBTQ community and its supporters have extended this critical analysis of the judgment with seven other petitions that together comprehensively expose the flaws in reasoning, the misconceptions and the unstated prejudices in Justice Singhvi’s decision. (details of all the petitions and the review process are available at https://new2.orinam.net/377/377-supreme-court-review-petition-process-explained/ )

Along with this, we have also filed petitions asking for the verdict to be stayed because of the very real harm that is being or could be caused by recriminalizing so many people. This is supported by affidavits from LGBTQ people and their families that give actual examples of this harm – for example, from HIV outreach workers who give examples of the increased abuse they have faced from the police after the verdict, from psychiatrists who testify to the hugely increased stress faced by LGBTQ individuals who they have interacted with after the verdict and the parents of LGBTQ people who talk about the adverse reaction their children are facing from their families and other parts of society after the verdict.

All this represents an amazing amount of work put together by the legal team and people helping them in the very short time of 30 days from the verdict, which is the deadline for asking for a review. It also testifies to the amazing amount of support we have got from society at large following the verdict. Even people who are normally disinterested in LGBTQ rights were disgusted by the poor reasoning and plain prejudice displayed in Koushal vs. Naz. Whatever happens in the future, we have benefitted from the support that we have got as a reaction to such a bad decision.

We strongly hope that the Court will listen to us and agree that the case must be reheard again, probably with a larger bench of judges. This would only be fair given the constitutional importance of the case and the harm that leaving the judgment to stand will cause.

And let’s clear up one basic misconception here – the Supreme Court decision did not pass on the responsibility for change to Parliament. What the decision stated, with appalling flippancy, was that anyone unhappy with it could go to Parliament to change it. But as the Court knows very well, this is not only unlikely, given the near deadlock in Parliament, but it would mean abdicating a basic responsibility of the Supreme Court, which is to protect the fundamental rights of every individual and community, not matter how small, from the bullying of the majority.

We know we have a strong case, but we have to admit to the reality that the Court is very reluctant to change its decisions once they have been given. A process exists for review, but it is only very very rarely granted. You need to convince the same judges who gave the verdict that they were wrong and need to rethink, and this is never going to be easy.

In our case the main judge who wrote the verdict, Justice Singhvi has retired. For the purpose of hearing this review he has been replaced by Justice Dattu, one of the seniormost judges of the Court, who will soon take over as Chief Justice. He will consider the petitions along with Justice Mukhopadhaya who heard the case with Justice Singhvi (and agreed with his judgment).

We had asked to have these petitions consider in open court, but this was denied. They will be considered only by the two judges in their Chambers shortly after noon on Tuesday, 28th Jan. We expect to learn what the verdict is around 6.30 in the evening when the decisions for the day are posted on the Court’s website. As soon as we know what the verdict is we’ll be issuing a suitable statement.

Our hope, of course, is that a review is granted and that the decision is stayed. In that case we are back where we started before arguing the case in the Supreme Court in 2012 and we will get ready for the battle all over again – but stronger for all the public support we have received.

It’s also possible that they will agree to hear the case again, but not stay the verdict, which will be depressing and will make it imperative that we start chronicling and publicising the many cases of harm that are sure to ensue.

It’s also possible that while considering the petitions in Chambers tomorrow they might realise the importance of the issue and the need for transparency and ask for an open court hearing, which is what we want (note – this won’t be an actual rehearing, but a hearing about whether to rehear!)

It’s also possible that they might realise the injustice of the earlier verdict and set it aside. If you’re at all religious and believe in divine intervention, this is the time to ask for it, for this outcome!

And finally, it’s also possible that, no matter what problems the verdict has, and the depth and range of our arguments against it, the Court may just decide it doesn’t want to take it up again. Perhaps they might feel it sets a bad example for endless rehearing of cases. Perhaps they might just not want the bother. Perhaps they might be oblivious to public opinion. Perhaps they might be also be prejudiced.

If this happens, it’s not the end of the road. There still exists the option of filing a curative petition from an individual with no connection to the existing parties who feels he or she has been affected by the verdict without having been given a chance to explain his or her position in court. This remedy does exist in the Indian Supreme Court, but is only extremely rarely granted for the obvious reason that the Court doesn’t want to allow cases and arguments to drag on forever. If it has to be done we would have to be really careful to find a case where the arguments are so compelling the Court might agree.

But beyond the legal remedies, there is also society at large and this, as we have seen from all the support we have received, is where we have our best hopes for change. The support we’ve got, particularly from young people, shows that India is changing on this issue.

The support we’ve got from groups like politicians and corporate leaders that have mostly stayed out of this issue in the past but not now shows that contrary to what Justice Singhvi wrote we aren’t a ‘miniscule minority’ whose rights can be overlooked,

The support we’ve got from progressive religious groups and leaders shows that they are willing to stand up and disagree with the small minded extremists who claim to speak for all people of faith.

The support we’ve got from straight people with no particular connection with LGBTQ people shows how they can recognise the danger that such bad law poses for everyone.

We will build on this support, showing how LGBTQ people aren’t the weird, unnatural community that Koushal vs.Naz and its supporters imagine, that we are Indians just like anyone else, deserving no special rights, but just the same rights as everyone else.

Our opponents hope to scare us with this verdict back into the closet, or even to “being straight”. We need to show them that we won’t and can’t. Coming out will always be a personal decision, never to be forced on people, but more people must come out, and we will, till society recognises how absurd it is to treat us to treat us differently.

We know this will happen because we have seen it happen elsewhere. In the USA, in 1986, in the case of Bowers vs.Hardwick, the US Supreme Court held that it was permissible to discriminate against gay people. 17 years later in Lawrence vs.Texas, the Supreme Court, including one judge who had voted with the majority in Bowers, reversed itself and said that such discrimination was wrong. Society had changed and the Court had finally caught up with it.

Tomorrow the Supreme Court of India has the chance to start its catching up. We hope it will do so at once and not make us wait, but even if it does, we can’t doubt that the Court eventually will catch up with the country, and all the communities in it, that it serves.

For more information on the Section 377 review petitions, see https://new2.orinam.net/377/377-supreme-court-review-petition-process-explained or visit the 377 archives at 377.orinam.net

Tamil translation of Vikram’s piece is at https://new2.orinam.net/ta/reviewingoptions-tamil/ titled பிரிவு 377 குறித்த தீர்ப்பை மறுபரிசீலனை கோரும் மனுக்களை உச்ச நீதிமன்றம் இன்று அனுமதிக்குமா?

On August 11, 1992, AIDS Bhedbhav Virodhi Andolan (ABVA) staged the first known protest against police harassment of LGBT people in India, The protest was against police raids that targeted men cruising for men in Central Park, Connaught Place in New Delhi. The protest was held at the police headquarters in the ITO area of Delhi.

ABVA was, in 1991, the first organization to challenge Section 377 of the Indian Penal Code. For more information, read  its historic publication ‘Less Than Gay: A Citizen’s Report’ [link here]

View the interview with Shumona Khanna – then a law student – in which she discusses the early-1990s activism of which Siddharth Gautam, founder of ABVA, and the Lawyers’ Collective were an integral part.

In 1996, Vimal Balasubrahmanyan wrote an article in Economic and Political Weekly summarizing much of this history. Read this article here.

Thanks to Mario d’Penha for sharing the newspaper clipping with LGBT-India, and for consent to republish it on Orinam.