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Category: civil issue

Decriminalizing homosexuality in India

In a landmark judgment, the Delhi High Court  struck down the provision of Section 377 of the Indian Penal Code which criminalised consensual sexual acts of adults in private, holding that it violated the fundamental right of life and liberty and the right to equality as guaranteed in the Constitution.

A Division Bench of Justice A.P. Shah and Justice S. Muralidhar  said: “We declare that Section 377 of the IPC, insofar as it criminalises consensual sexual acts of adults in private, is violative of Articles 21 [Right to Protection of Life and Personal Liberty], 14 [Right to Equality before Law] and 15 [Prohibition of Discrimination on Grounds of Religion, Race, Caste, Sex or Place of Birth] of the Constitution.

As the ruling was made by a high court, it was inevitable that the case would move forward to the Supreme Court. The Supreme Court  set February as the month for deliberating on this case. Between that time the hearings had garnered a lot of attention as the legal counsel for the Home Ministry had clearly expressed an anti-gay agenda:

The union home ministry urged the Supreme Court  reverse a landmark decision to decriminalise gay sex, saying homosexuality was immoral, “against nature and spreads HIV.” The apex court was hearing more than a dozen petitions filed to overturn a 2009 ruling by a Delhi High Court that made gay sex between consenting adults legal for the first time. The colonial-era ban was judged to be unconstitutional in a decision hailed by gay activists as a victory in their fight for equal rights and opportunities in the world’s biggest democracy. Gay sex “is highly immoral and against the social order,” additional solicitor general P.P. Malhotra, who is representing the home ministry, told the top court. He added that it was “against nature and spreads HIV.”

Religious and conservative groups, such as Hindu yogactivist Baba Ramdev and conservative Muslim groups, filed the petitions against the ruling. They were joined by organizations and ministries that tried to frame the issue as one protecting children from molestation (something easily covered under laws of rape or similar) Several political, social and religious outfits  asked the Supreme Court to give the final verdict on the issue. Senior BJP leader B P Singhal, who had opposed legalisation of gay sex, had challenged the verdict in the Supreme Court saying such acts are illegal, immoral and against the ethos of Indian culture. Religious organisations like All India Muslim Personal Law Board, Utkal Christian Council and Apostolic Churches Alliance had also opposed the High Court’s verdict. Delhi Commission for Protection of Child Right, Tamil Nadu Muslim Munn Kazhgam, astrologer Suresh Kumar Kaushal had also opposed the verdict in the apex court.

The health minister, Mr. Azad, made it more than clear what his perspective was at a conference in July 2011: “Unfortunately, this disease, where a man has sex with a man, which is absolutely unnatural and shouldn’t happen but it is happening, is spreading around the world and has also come to India,” said Mr. Azad, speaking in Hindi. “Even in our country the numbers of men having sex with men is significant.” Mr. Azad went to say that these men are hard to locate, and that is a problem for the fight against AIDS. That’s what Naz Foundation, which works on AIDS outreach has been saying too—and it doesn’t think the health minister’s remarks will help.

One of the reasons that these opinions were expressed by politicians and religious leaders was that they do have echo among people in India, however increasingly the acceptance of a gay identity in India had allowed for pride parades and openly gay couples. While, the western concept of this gay identity is indeed an “imported” phenomenon into India, there seemed to be a large amount of evidence that a more fluid concept of gender and acceptability of same-sex love and sexual relationships is something that is traditionally present in cultures in the Indian subcontinent. The idea of same-sex love as something unnatural might well itself be a puritan.. Additionally, there could have been found a large number of people in India who have a desire for partnership with a member of the same sex, but who wouldn’t identify with the gay identity displayed in the pride parades.

“Homophobia, and not homosexuality, is new to Indian culture,” says Vinay Chandran of Bangalore-based charitable trust, Swabhava, which works with gender and sexual minorities in the country. His argument has a sound basis considering homosexual acts have been recorded in ancient Indian writings, including the Kama Sutra, for hundreds of years. Current attitudes towards homosexuality, in part go back to 1860, when India was under British rule. It was then that the infamous Section 377 was introduced into the Indian Penal Code.





Assam Riots – What’s your Approach?


A few days ago, I saw somebody making a comment related to an article written on India-Bangladesh border issues. The comment read: “I do not care about how many Bangladeshi go to West Bengal. You guys are one people. However I have a big problem with Bangladeshis and Bengalis entering Assam. We have never been conquered by any empires of North or East India, be it the Mauryas, Guptas, Mughals or the Nawabs of Bengal. We beat them all when they tried to conquer us. No way in hell are we going to all Bangladeshis to kick us out of our land by trying to out breed us…hell no way. Assam is a tinderbox and when it explodes the immigrant Bangladeshis in our state are going to get slaughtered.”

This comment could give an insight into Assam’s psyche which boast of a vibrant ethnic nationalism and the violent results that took effect when this nationalism perceived a threat from outsiders.

History of turmoil

During the colonial days, ‘outsiders’ from Bihar and Bengal were taken to work in the tea-plantations of Assam and they were settled there. The Partition saw a huge influx of refugees from the erstwhile East Pakistan into Assam besides West Bengal. In the early 1970s, when the West Pakistani officials started suppressing dissenting voice in East Pakistan, more refugees went to Assam and a large section remained there. More refugees entered Assam in the subsequent years, putting the natives feel increasingly insecure, culturally and politically.

The demographic transformation made the Assamese increasingly apprehensive that they would turn minority in their own land and when towards the late 1970s it became evident that a huge section of the illegal Bangaldeshis in the state had become voters, the Assame started retaliating against the outsiders, starting off a politically volatile situation. The insurgency in the state to protest alleged negligence by the Indian state put the state’s socio-political life into further turmoil.

But the recent spate of violence that has hit Assam and which killed 25 people and saw people running for their lives pose a simple question: Why is that the Indian state still unable to resolve a problem that has continued for such a long period? Is 65 years not enough to set into force an administrative mechanism which can ensure a proper rule of law and protect ordinary human lives?

Current problem

On July 6 and 19, four persons from the minority community were killed while on July 20, four ex-Boro Liberation Tigers cadres were shot dead. The situation was gradually turning worse in the sensitive BTAD (Bodoland Territorial Administered Districts) comprising areas like Kokrajhar, Baska, and Chirang but local people said the government was not reacting as quickly as it should have to the problem.

The Assam Chief Minister, Tarun Gogoi who is also in charge of the home portfolio, was criticised for not taking the matter seriously and allow adequate forces to be released to man the disturbed areas. The Boros have tried to reassert the same old charge: The outsiders, whose numbers were increasing, had put the natives under threat.

The charge is against the minority community of course, which is considered of comprising outsiders even if such people have been residing in these parts for the last 60 years or more. Those representing the minorities, said on the other hand that the administration was not doing enough for their security.

There were also contradictory versions heard about the July 20 killings. Meanwhile, the crisis went on snowballing and finally exploded in the form of a communal riot, throwing every aspect of public life out of gear. The CM confirmed that 50,000 people found shelter in relief camps.

Govt looks to be not in control

The government, although said it was trying to bring the riot under control, but apparently itlooked to be in no position to set a time-frame to effect any change for the better. The Ministry of Home Affairs, as per the Assam government’s plea, deployed more troops to the violence-hit areas.

The latest riots exposes the inefficiency of the Indian state machinery in plugging the gaping holes in the process of nation-building and also key border issues in the geopolitically-sensitive north-eastern region, which is marked by a number of international boundaries, particularly with Bangladesh.

Threat perception normal

The threat perception of the native Assamese against the influx of illegal migrants is not abnormal. All across the globe, rise of Islamic militancy and the forces of globalisation have made clash among civilisations a pertinent problem. Bangladesh, today, has failed to provide any hope of sustenance to its huge population, both economically and politically, and the spill-over effects have affected India. In such a situation, extremist political elements in India found it convenient to capitalise on the issue for electoral gains but at the cost of threatening the social fabric of unity.

Assam’s unique geopolitical location make it a sensitive area. Assam is linked with the rest of India by the narrow stretch of ‘Chicken’s Neck’ and has proximity to a number of international borders. Its ethnic identity is heterogeneous to a way that defining an Assamese is a real task. Like in the rest of the northeast, Assam’s cultural identity is in dissonance with that of the mainland India. Given this background, the state’s task to build up a viable administrative base in such a diverse unit becomes key.

Indian state has missed the actual problem

The problem with the Indian state is that it either pours money or resorts to counter-violence when the softer step to tackle problems like insurgency do not pay off. The important aspects have been left overlooked in between.