(Served on the Governor after a grand rally to the Governor's mansion in Kolkata - Aditya)
Citizens’ Deputation to His Excellency the Governor of West Bengal in response the Judgment Delivered by the Hon’ble Supreme Court of India on December 11, 2013 Regarding Constitutional Validity of Section 377 of Indian Penal Code, 1860 Mr. M. K. Narayanan H. E. The Governor of West Bengal Raj Bhavan, Kolkata Respected Sir, We, the citizens of India and residents of West Bengal, want to share our deep anguish and grievance in response to the Judgment delivered by the Hon’ble Supreme Court of India on December 11, 2013 in Civil Appeal No. 10972 of 2013 arising out of SLP (C) No. 15436 of 2009. The Hon’ble Supreme Court by its judgment has set aside the Judgment dated July, 2nd 2009 passed by the Hon’ble High Court at Delhi which had declared that Section 377, insofar it criminalises consensual sexual acts of adults in private, is violative of Article 21, 14 and 15 of the Constitution of India. The effect of the judgment of the Hon’ble Supreme Court is an infringement upon every Indian citizen’s right to equality, non discrimination, privacy, freedom of self expression, personal liberty and choice since Section 377 criminalises every citizen, for the said provision of law is applicable to everyone, irrespective of their caste, creed, religion, gender, sex or sexual orientation. It might not be inappropriate to refer here to the words of the preamble to the Constitution of India that it is designed to "assure the dignity of the individual" and therefore of those cherished human value as the means of ensuring his full development and evolution. While we appreciate and understand that the State, in accordance with law, can and must enter into the private domain in the event there is violence even within a private space. It is the bounden duty of the State to intervene and protect the rights of the victim. But when there is no coercion or violence or violation of rights and two citizens, who have attained the age of consent, are voluntarily entering into any kind of relationship on the basis of mutual consent, in private, we, as citizens of India fail to understand how the State can pervade such private domain and thereby infringe upon the Fundamental Rights of its citizens. If physical restraints on a person's movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. The Judgment of the Hon’ble High Court at Delhi does not obliterate Section 377 IPC from the statute book but merely decriminalizes sexual acts of adults in private. Any act of violence, either in private or public, still remains an offence punishable in accordance with law. But unfortunately the said provision of law is applicable to acts of love making and has become a tool for persecution in the hands of the executive. In the last 152 years since the enactment of Sec. 377 IPC, social situations have changed to a large extent and we, the people of today do not any longer subscribe to the Victorian concepts of morality. Naturally, the imposition of moral values of the Victorian era is detrimental to the welfare of the people. On today’s date to consider an act to be impure and unacceptable simply because it is ‘sensual’ or ‘fleshy’ is extremely unrealistic. We also believe that the use of phrases like ‘Unnatural offences’ and ‘against the order of nature’ in the present context to be outdated on basis of scientific and social standards of this time. At the time of enactment of the said statutory provision, there were no substantial scientific data and empirical evidences to explain diverse sexual acts and behaviours, but 1) with so many contraceptive measures made legally available and use of them being socially desirable and with the Medical Termination of Pregnancy Act 1971 in place respecting an individual’s right to opt for or reject pregnancy and parenthood, considering non-procreative sex to be ‘impure’ and ‘against the order of nature’ is summarily unacceptable; 2) with plenty of scientific evidences and detailed documentations of existence of various kinds of sexualities and sexual acts in more than 500 animal species including human beings belonging to every class, race and group of people in every period of human existence and also asexual reproduction in many other species, considering only a particular kind of sexuality to be natural and prescribing the same for every individual does in itself appear to be an act against the true order of nature. We therefore as citizens of the 21st century of a Democratic Republic consider infringement of our rights to privacy and liberty and freedom of self expression on the pretext of certain sexual acts being considered ‘against the order of nature’ and ‘impure’ on basis of some archaic law based to an ultra-moralistic construct alien to Indian cultural heritage and tradition to be extremely dangerous and we don’t want our rights to be violated that way. We believe, the term ‘life’ as used in Article 21 of the Constitution of India means something more than mere animal existence. The inhibition against its deprivation extends to all these limits and faculties by which life is enjoyed, the choice of sexual act and partner upon mutual consent, being one of them. Though technically Sec. 377 IPC affects every citizen irrespective of her/ his sexuality and perceived gender identity, it is popularly understood to be a law against homosexuals. The Hon’ble Supreme Court in paragraph 43 of its judgment in page no. 83 has mentioned that Sec. 377 IPC cannot be declared ‘ultra vires the provisions of Articles 14, 15 and 21 of the constitution’ since a ‘miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or transgenders’. We are extremely worried by such observation made by the highest judicial authority of this country sworn in to uphold the Constitutional rights of its citizens. The established democratic norms say that while majority must prevail, the rights of the minorities, however ‘miniscule fraction of the country’s population’ they might be, need to be respected and protected. If today the Apex court allows violation of the rights of the sexuality minorities, we apprehend that at any time rights of the religious, linguistic, ethnic and other minorities could get violated and that violation gets sanctified by the guardians of our Constitution. The Hon’ble Supreme Court has referred to a report submitted by National AIDS Control Organisation (NACO) and Ministry of Health & Family Welfare, Department of AIDS Control according to which the total population of MSM (men having sex with men) as in 2006 was estimated to be 25, 00, 000. But what the Court has failed to observe is the fact that the HIV prevention programme run by the Department of AIDS Control is yet to reach out to a large geographical part of the country and MSM excludes homosexual and bisexual women and female to male transpersons. Naturally the number of homosexuals is far more than 25 lakhs and people practising ‘carnal intercourse against the order of nature’ is many fold greater since a large section of heterosexual population might also fall within its ambit. According to globally accepted psychological, sociological and anthropological studies homosexuality is estimated to be found in 10% of any population in a very conservative estimation. Going by that the total number of homosexuals in a country of 100 crores could easily be estimated at 10 crores. If a population of 10 crores or, for that matter 25 lakhs, could be denied their Fundamental Rights, then we shudder and wonder what could happen to the 1, 25, 000 Anglo-Indians, 25, 000 Parsis and 5000 Jewish people living in this country! As citizens, we shiver with terror to imagine what precedence has been created by this Judgment and what damage it could cause to the respect for diversities and the inclusiveness which our Constitution enshrines. While delivering the Judgment the Apex Court has also overlooked the fact that human sexuality and sexual acts are matters of core privacy and naturally cases of conviction under Sec. 377 IPC of non-peno-vaginal sexual acts between consenting adults does not exist. But that the unscientific and illogical criminalization of certain sexual acts extends to the extra-legal acts of harassment, physical-mental-sexual-social violence, and discrimination against a large section of population was very much documented before the Apex Court. We believe our laws are for the people of India and any law that, intentionally or otherwise, leads to such injustice needs to be reviewed and changed on the basis of evidences and scientific findings to provide relief to the victims of such injustice. Leaving the onus on the Executive alone and retaining a bad, archaic, ambiguous and dangerous law in place poses a threat for the people of this country. True that in a democracy making or repealing or changing laws is the duty primarily entrusted unto the Legislature. But since the members of the legislative body have to work under electoral compulsions, they often ride by populist agenda and ignore or even oppress not so popular yet valid concerns of the citizens. That is where the Judiciary needs to step in. As the highest court of this country, the Hon’ble Supreme Court of India has an excellent track record of safeguarding people’s rights violated by various unfair legislations and extra-legal measures in many previous cases. But unfortunately, in this particular case, the Apex Court has failed to live up to its reputation of the protector of the Fundamental Rights of the citizens of India. While the Apex Court has observed that in spite of the recommendations made by the 172nd Law Commission of India and various international instances and statutes, Indian Legislature has not brought any change to this law. It has failed to notice the lack of political goodwill resulting into retention of such a draconian law. We want our laws to get rid of such pre-constitutional colonial hangovers that affect Indian citizens in the most unjust manner. We therefore humbly request You to do exercise Your good office to do the needful, as the Constitutional Head of the State of West Bengal, to convey our deep anguish to the appropriate authorities so that Section 377 IPC no longer stands in the way of voluntary sexual acts between consenting adults till the Legislature, be it the Houses of the Parliament or the State Assembly, brings about necessary amendments in laws relating to sexual offences and finally strike down Section 377 Indian Penal Code, 1860 in due course and thereby ensure a healthy sexual life, free from persecution, coercion, infection and unwanted pregnancy to every citizen of the country irrespective of their sexuality. We also want our country to remain tolerant and inclusive and our society respectful to all diversities – sexual, religious, linguistic, ethnic, gender et al. We remain Sir, Yours most faithful citizens of West Bengal irrespective of caste, creed, religious faith, linguistic background, class, gender age and sexual preferences. Dated: Kolkata, The 19th of December, 2013 Aditya Bondyopadhyay (Sent from my iPhone)
