Naz Foundation II

Arun, thanks for posting on the Naz case. The Lawyers’ Collective website does not have the minutes of the fantastic arguments made on 25th September 2008 by Shyam Divan on behalf of the intervenors ‘Voices against 377’ a coalition of various groups supporting gay rights, women’s rights and child rights. These minutes can be accessed here. Unlike the Naz Foundation’s arguments which relied heavily on the public health and HIV dimension of the case, Voices took a more human rights centric approach, insisting on equality, liberty and dignity.

The government’s response has been confused, contradictory and has invited admonishment from the bench for its casual approach. Although the government has finally decided to go ahead with the Home Ministry’s position by opposing the petition and told the Court to ignore the views of the Health Minister Ramadoss, the latter has again publicly defended the demand to decriminalise homosexual behaviour. I wonder if the collective responsibility of the cabinet extends to taking a unified stand in a court, or can two ministries have opposite stands? Article 75(3) of the constitution only demands collective responsibility to the Lok Sabha. Why this insistence on a ‘unified’ government stand, which basically has resulted in one view being completely ignored? Why can’t both ministries propose their independent views and let the court decide?

Written by
Tarunabh Khaitan
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  • While I support removal of Article 377, we must not over-estimate the current impact of the law on homosexual men and women, and what benefits will come from removing the law.

    For every brutal episode that Mr. Divan gives, one can give another about how homosexuals have been living in relative freedom in India. Madhu Kishwar, for instance, has noted that one of the great figures of Urdu poetry, Firaq Gorakhpuri, was a known homosexual and lived in a small town in Uttar Pradesh, seemingly without problems. In recent years, we have people like Ashok Row Kavi who have openly identified themselves as gay and have even held prominent positions. Ashok’s Wikipedia page, for instance, says that among other things he has been a visiting faculty at the Department of Clinical Psychology at the University of Mumbai.

    To be sure, Ashok Row Kavi and Firaq (and even Vikram Seth, a bisexual) do not represent the experience of all sexual minorities. But neither must their experiences be seen simply as an “aberration.” It does say something that even in relatively conservative Tamil Nadu, there is a TV program “Ipaddikku Rose” hosted by a transsexual [on Vijay TV] and that Jayalalitha who had what was believed to be a lesbian affair with Sasikala Natarajan, could stand for elections without that ever becoming an issue. (Her arrogance and corruption were the relevant issues.) India is not the West and our experiences of homosexuality are quite different. Interestingly, this seems to hold good even for Pakistan: I came across a recent story in the UK press about a Pakistani gay man who had actually moved back to Pakistan from the UK because he found it easier to live as a gay man there. Not something we would associate with Pakistan, would we?

    Lest I be misunderstood, I am not claiming that homosexuals have an easy time in India. All I am claiming is that firstly, the experience of homosexuality in India is different from the West and we must not make the mistake of conflating the two. (Mr. Divan talks widely about the experiences in other countries which I don’t think is at all relevant.) Secondly, we must not make the mistake of overestimating the gains from the removal of Article 377. There will be some gain, to be sure because it will remove police harassment to some extent, but frankly I don’t think it will make that much difference. (I am a heterosexual and so, am open to be corrected.) However, as I said right at the start, I do advocate removing Article 377.

  • ‘Why this insistence on a ‘unified’ government stand, which basically has resulted in one view being completely ignored? Why can’t both ministries propose their independent views and let the court decide?’

    This is a question of practical importance and not an academic
    debate.So it is better that the
    government takes a consistent stand.Otherwise ministries and
    departments will be working at
    cross-purposes. I think the perceptions differ with one
    minstry taking a strict ‘moral’
    view while another taking a pragmatic approach.

  • 1.How AIDS is connected to Gay behaviour?
    2.Can two consenting adults be permitted to do anyhting as they please within closed doors?
    3.If sec 377 prohibits consulting behaviour between adults within closed doors , how it is going to be proved in court of law?
    4.male rape and forced sodomy is common in professional colleges of south/pRISONS and known as RAGGING DUE TO WHICH MANY A STUDENT HAVE LEFT THE COURSE OR COMMITTED SUICIDES. Are they to be let go scot free just because it is being forced on MEN?
    5.Anbumani ramadoss is in league of some western agencies like WHO(funded mainly by Drug MNCs)/MINDFREEDOM/wnusp ETC WHICH HAVE CONNECTIONS TO SOME very difficult to pin funders and donors who take the SHINING ARMOUR CALLED HUMAN RIGHTS which is very dear to lawyers lobby.
    377 is the only detterent against MALE RAPE

  • but captainjohann, the petitioners only want ‘consensual’ male sex to be excluded from 377 – they dont want it struck down, only ‘read down’. so, even if they are successful, male rape and child sexual abuse will continue to be criminal under the remaining section 377. what’s wrong with that?