Sunday, August 10, 2014

#RakshaBandhan against Patriachy

Today many sisters will tie a designer thread on their brother's wrists. It is called Rakhsha bandhan. The girls will urge their brothers to protect them. The brothers will feel happy that they can control their sisters with the intention of protecting them.  Women have to be protected.

The He can't be weak, he has the responsibility of  protecting the She. The She can't be strong, but even if she is, this festival asserts the right of the He to protect the She. The brother will have to give gifts to the sister, and the sister will have to accept them, even if she is stronger than him and healthier in wealth.  Women have to be protected.
I am not only talking from the women's point of view. The HE in this country is expected to be strong, to be richer and to not go weak at any circumstance. The He is made to feel ashamed every time he cries or shies, for thatis the domain of the She. He is the macho being and is expected to be like that all his life, whether just out of cradle or closer to the tomb, immaterial . He is pressurized all his life to be strong. For women have to be protected.

So, it is not surprising that to assert his strength,  he chooses violence in place of benevolence.  He restricts and constricts the She to assert his right to protect. This  is re-affirmed with traditions and customs.  Yes, women have to be protected.

The pressure is so much on him that it goes beyond the confines of the home to women outside. He looks at himself and realizes that the thing that is different between He  and She is that he has the organ that can be inserted inside her.  He unknowingly starts worshiping the organ. Like in tradition, in sex, he is the giver, she is the accepter. So he chooses to thrust his manhood on anyone and anything that it would enter. He thrusts it on women, but also on any orifice in the body of transpersons, homosexual men, or even weaker men who in his opinion are woman-like. All because, women, need  to be protected.

It is a beautiful festival. But let this be against misogyny. I would appreciate if all genders tie rakhi to  each other.  Or better still, tie rakhi to the one who will protect you. Men, women, transperson – immaterial.  If protection is the essence of the festival, let's make it real. Protect the ones who need protection, but more importantly, empower them so that they don't need to tie you a rakhi tomorrow.

You know what I mean?
  
watch these lovely illustrations  from http://homo-club.tumblr.com/post/90290311170


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Friday, August 08, 2014

Set the bird free!

Hey did you want to tell me that you were raped?
That you would have died and had a narrow escape?
That you are angry and hate yourself?
That you have not felt happy feeling yourself?

You dont want to listen to advice, I won't give you,
I will not champion your bravery for that is not true,
I will leave you alone, and watch you cry,
I will not hold you close till your tears run dry.

Then I will put you on my chest and tell you nothing my friend,
I will not belittle your pain with words that can't comfort what you underwent.
I will be like a stone, and give you my ear,
I want you to know that I may be far, yet I am near.

I know you are scared, that you will be not believed, that your life will be called a pretense,
That you will be called a story,  that no one will believe your utterance.

I understand your unsaid, and all that you want to say,
I see the unseen in big wild bombay,
I understand you are outraged,
The emotions you have caged,
Even if it was not to open it to me,
It is time to uncage, set the bird free.
Set the bird free!!!

Tuesday, July 22, 2014

Someone Spat On My Face #Homophobia

Fucking Asshole!

Am at the station platform  an asshole just screamed  GUD from a train that passed by and SPAT on me from the running train.  It missed my face by a few inches. Heading home to wash myself and change the shirt.

I would have roasted his balls and humiliated him like no ones business if was on ground. 

If this can happen to me, so can it with anybody. But it is not the time to hide. It is  time to stand up the fight.

It also gave me an understanding today about the mawallis screaming AYE ITEM to girls at the platform.

Bullying  is on a rise.
Thank you India. Thank you so fucking much. 

You have to pay heavily for facilitating  the loss of dignity of a gazillion LGBTIQ people in india.

There is absolutely #NoGoingBack now. Spit on me you fucking moron. Spit one as I am right here going to light fire up your ass. Fucking asshole.

You think I will be ashamed, you thonk I will cow down and hide. I will get up you asshole. I will get up and wear my fucking sexuality on my sleeve now. You fucking deal with it.

I will wait for you to attack me again. And then I will get you screwed by the same public in the train.

Think I was taking my freedom too easy and was being too cozy and being complacent. In fact, I was just telling a friend that we should be doing something compelling and provocative with hard truths to get people to sign the petition and this spit happened. It was almost like being given a reason enough to share.

I am sharing not to scare you. Yes it is a difficult time. But women go through harrassment this every fucking day. I can hide my sexuality, can she hide her gender?

It is why all movements need to step up together. And stand up equally and unequivocally for the tenets of human rights. It is not gay rights anymore. It all stems out of the same mindset to impose the thought of the majority on the minority.

P.S. I am least apologetic for the language. I needed to vent. And I feel violated.
I drafted this post almost an hour ago but wondered if I should post it considering that I am known, would this spread panic. But  then I thought I need to post for my own selfish reasons. I wish to scream shout and vent it fucking out. That's my way of coping with anger and stress. You have a problem - go fuck yourself.

Sunday, June 22, 2014

Humshakal : Rights of Admission Reserved

Yesterday, we had 4 hours to kill between the massive plantation drive at Maharashtra Nature Park that we were organizing. We didn't know what to do to in the interim. We came up with the brilliant idea of watching a film in the theater close by. We didn't want a heavy dose film rather we wanted a stupid silly film to watch and laugh our way back to our plants.  The result – we bought tickets for Humshakal.


We reached the theater almost half an hour after the show and left in less than 45 minutes, but we were really not feeling bad. The AC was good and cozy. We took a small nap, while occasionally wink-opening our eyes to catch this classic.  We all expected a silly film. A real silly film. This film is different, you need to qualify to watch it.  Here is the  qualifying criteria :  

  • ·         You are not offended by silly jokes.
  • ·         Reality makes no sense to you.
  • ·         You don't care if a mentally challenged are teased or the film propagates stupid myths in the name of humour
  • ·         you don't get into your activistic mode on seeing people given shock treatment because they are "PAGAL" -  just for fun.
  • ·         You are not a real cinema lover.
  • ·         You want to make out with your partner and you don't have PLACE.
  • ·         You are overtly empathetic and flaunt your superb sense of humour,  so you will excuse the director  for the stupidity because you notice that he jokes about his own film (himmatwala)
  • ·         Your idea of good lyrics is "Tere iraade hain bade hi shaitani,  Not available hai meri ye jawaani"
  • ·         You want to support Bipasha Basu and Saif Ali Khan's sinking careers and this film is your charity to them.
And if the reasons above are not listed above, you have no right to watch this film.

Tuesday, June 17, 2014

This Is How We Treat Survivors Of Sexual Assaults

In India we respect the victim of sexual assault only if she is dead. (well in some cases not even after death) If she is living, we rape her/him/hir again verbally. We ask "Look at the CCTV cameras does she look assaulted?" "O! That Bitch, she wants compensation" "huh! She was possibly drunk or drugged" "doesnt she kiss people and sleep with them otherwise... Randi saali". The victim has to prove that they are one. Like when they are getting molested, assaulted, raped ... they are supposed to think "evidence" "evidence"... "let me collate evidence". 

Like, when you have someone feel up your groin, fingering your vagina, pressing your nipples, pushing his penis on your rectum, you need to be thinking –"I should collect EVIDENCE" 

You are supposed to not waste time and run to the police. Even if you are bleeding and scarred for life and know that there would be the whole world turning its eye on you.. You have no right to wait till you attain a calm composure. Even if you are dying in pain, physical or emotional- you need to report. For you will be asked " why were you quiet for so many days, bitch, were you plotting".

If you seek help from someone you know could. And if the cheif minister has issues with that person... The victim will be called the enemy of the state. If she happens to be a "not looking" raped, not having swollen eyes and is seen in a party after the time of rape she is called a liar. She needs to look raped. If she is a film star and high profile, one thinks that she probably knows to fib and spin a yarn, like she does in front of the camera she does here.

Some of the others will be kind. They will call the raped one courageous. Send the person mails championing her move. Put the raped one on a pedestal. Make the raped one a wall flower - a piece of art for all kind souls to flaunt and fart. 

May be, the one distressed don't need all of these. May be they just need some space, some light of their own sun, sometime minus judgments, some time to regain strength. Is that too much to ask for?

Friday, May 09, 2014

Bridegroom - Review

Bridegroom is a poignant love story. A documentary it is, but it defies every stereotype you have about documentaries. It is the story of love that half the world has always shied from giving a name.  This is not a ‘cause’  film, it is a story everyone identifies with. It is a film about the perils of being a social outcast, an uneven minority. Bridegroom is a testimony of love by the ones who are different for the ones who are indifferent. This is about the indifferent group of a large number of people deeming it fit to impose their view on a minority. This Bridegroom is true to its name.  It leaves you dew eyed with so much hope that you just wish to run to your window to peep out and wave to your knight in shining armor, your bridegroom.  As the film beings to end, you are not filled with pity, but hope. You are not filled with remorse, but joy. You are not filled with resentment, but contentment. You are not filled with the fear of an unforeseen tomorrow, but with the will to celebrate your today and your yesterday.

Bridegroom makes you believe that life doesn't end with the end of it, it goes on. Shane and Tom bring alive even the one that isn't. All that you would say as the credits roll up is “long live the bridegroom  - Shane and Tom”

Bridegroom is a must watch for everyone – irrespective of whether you are a propagator of hate or a follower of love. If you are a cinema enthusiast or a cinema student, the one sure sin you will commit is to miss this screening wherever it is.  



Friday, April 04, 2014

STAND UP FOR YOURSELF

I don’t think it is anyone’s business but ours to fight for our rights. I don’t think we can rely on anyone, lean on any support or be sanguine about having someone over there ever ready to fight our battles. It is our life, it is our ground, it is our game that we have to play.



There are some who consider you a number. A digit so small that you would use two words that mean the same to meanly define you – minuscule, minority. And there will be others, who will promise you of their support verbally, but will not put it on a document that could be preserved for posterity. You are made to feel so small, that you really think you are small. Like a dot in the map. A dot of shame that lives just to reinstate that we are no stain. That we have been restrained instead for ages. Our confidence has been maimed so badly, that we think we are jumping when we crawl in the straight lanes of life.


I wonder if that would ever change if we relied on others. If it has to, we have to take the plunge. We have to pass the test. We have to stand up for ourselves. We have to be knit closer than ever. We the LGBTIQ community, cannot be considered an insignificant number. We are people. Real people capable of impacting real change. Change within, and change in the world, as we see it.


I don’t have money. I have wings. I don’t have assets. But I have a fractured spirit that propels me further with greater velocity. I will do something that I thought I would never. I will stand up for the elections. Some party, Some day, Some time. I will.


Saturday, March 22, 2014

BREAKTHROUGH : Self-Confessed Online Child Predators To Be Caught

It is on the rise. We increasingly see gay dating spaces and also social networking sites being plagued with profile updates that state that they look for young boys. It is also important for people to know that insanity prevails in every group and every  sexuality. And just as the complete heterosexual community is not called promoting child trafficking because girls get abused and trafficked into prostitution (in larger numbers), we cannot hold the whole homosexual community responsible. In fact, as a gay person, I am more focused on child sexual abuse as an issue. And would stand up against child sexual abuse offenders – irrespective of what  sexuality they subscribe to.  Well, web patrolling is still at a nascent stage in India. the good news is that the police in Bombay does respond and assist you in every way possible. Yes, there are some trolls in the police, but that doesn't take away from the many who do their job very well. The truth is that it does take a lot of time for them to respond, and if it is an urgent case that needs immediate attention, the citizen needs to raise an appropriate alarm so that they could act more promptly.

I recently had a breakthrough in a child sexual abuse case. Of course the case took many follow ups and visits to police stations in distant corners of Mumbai and Navi Mumbai. In May 2013, someone informed me about a status update on facebook that boasted about having sex with a 15 year old boy.   The profile was of someone who went by the name of Ajay Ahuja. If this status update was not disgusting enough, the comments that requested the child to be passed on to them after use, added to the repugnance.  I quickly recorded the complete conversation on my blog here with an open letter to the commissioner of police, Bombay. I also posted a copy of the letter to the cyber cell Mumbai through the online mode and the email ids mentioned here cybercellmumbai.gov.in/  I got a reference number from them.  After I had captured the post details on my profile. I highlighted this disgusting post on facebook in my profile, and urged people to complain and also report the post. The post was pulled down and my appeal to report this post was widely read by a lot of my friends and also shared. I asked the Cyber cell  of Mumbai at bandra to update me about the status of the case. I was asked to personally visit the Navi Mumbai Cyber cell and register a case there, since I am a navi Mumbai resident. I thought that it was absurd, because I am a complainant and I should be allowed to register the complaint anywhere, more so, because it was a cyber complaint. But I chose to not rant about the system but go personally for a human interface to the Navi Mumbai cyber cell at the Police Commissioners office in Belapur. The police knew about the laws of the land but had their own understanding and interpretation. The positive thing about the Bombay and Navi Mumbai police is that they are willing to listen to a counter view and correct their thoughts accordingly. At first, I had to meet their prejudices, they saw the case from the point of view of homosexuality. Their impression was that homosexuals have sex with minors. Though I had been to the police station to register a case of child trafficking/ child sexual abuse/ cyber crime, I ended up finding myself in a situation where I was debunking their myths and enlightening them with information about homosexuality.   I did so by coming out to the poilice about my sexuality, and told them that there are abusers and protectors in every community. I asked them to tell me how many cases of men abusing girl children they hear of. I then asked them how they would feel if I branded the whole community as rapists and child molesters because some are so. I made it more personal by asking them if they felt all heterosexuals were abusers, wouldn’t that generalization include them as well, as they are openly heterosexual. I had a three hour long conversation with the woman police officer there and explained the difference between homosexuality and heterosexuality and transgenders and how any one could be a child protector and anyone could be a child molester. The police took my complaint and told me that they will investigate the matter thoroughly. 

I followed up with the police for a while and then got embroiled in other issues of counseling that needed my immediate attention,  that this took a back burner. 8 months later, on  15 December 2013, I received a call from the police station of the jurisdiction of my residence in Navi Mumbai. The Kamote police station again had the same set of prejuidices about the Gay community. I had to spend around the same amount of time explaining that gays are not equal to child molesters. But human depravity is universal and cuts across all genders and sexualities. Again, as a serial coming-out person, I came out to them. They gave me a compassionate ear, they also told me that they have found a residential address to the IP address. They also had finer details of the person at the IP address , like his name and the number. I thought that the next process would be to just call the number and nab the person. But then came a rude shock. The police officer told me  that the case needs to be transferred to the Bangur Nagar police station, which is in Malad, more than 50 KMs away. When I asked them why would they not take cognizance of the case they pointed at a comment by the culprit Ajay Ahuja in the comments section of his facebook update in which he said that he lived in Bangur Nagar. I found it absurd and was immensely frustrated. I wondered how difficult it would be for someone to even follow up on an online complaint if you are thrown from one police station to the other. I was annoyed, but refused to lose hope. I had already spent 8 months following up, I had made a habit of waiting for justice. Through the feeling of annoyance loomed over me, I was pretty sanguine about the fact that the case was moving forward.  After this, I interacted the kamote police station a few times for other cases and checked with them about this particular case. Their answer was that I will hear from the Bangur Nagar police station.

On 20 February 2014, I received a call from Police Sub Inspector Deokhale from Bangur Nagar police station. The inspector called me over to the police station to understand what the case was and how he could help. I didn’t find time until 21 March 2014 to visit the police station which was 2 hours away by road from my office, given the traffic in the western line. PSI Deokhale was most compassionate. He assured me of complete cooperation and thanked me for taking up the case. He explained to me that the best thing would be to pursue the case from my jurisdiction because in case of follow ups and visits to the courts it would be more convenient, but having said that, he also assured me that he would take cognizance of the case if I intended to pursue it further. He and I had a long chat where I continued the rigmarole that I followed in the preceeding police stations. This one was different. He patiently wrote my complaint and had a discussion with me about the possible outcomes of the case. He said that he would file a case under the IT acts and then down the line,  take it up for further investigation under POCSO (protection of children from sexual offences act 2012) as the investigation proceeds. He was amazed at the perseverance and was also shocked that I had to go through so many police stations to pursue the case.  He gave me a case number and told me that he would call me back in a week to update me on the status of the case. He instantly shared his personal number with me. Now all that needs to be done is that the culprit needs to be called to the police station and visit the court to explain his stance. He may go off the trap as in such cases there needs to be a victim present. And to trace a victim in this case would be difficult. This could also have been a case of simple chest-thumping about having sex whereas nothing really could have happened. The fact, but lies that they would have to go through the embarrassment of cops visiting the house to summon them and a visit to court to explain the stance is inevitable.

the case number. 
I am immensely thankful to Madhavi Rajadhyaksha for taking this up not as a personal cause and not just merely a media interest story and dipesh tank for connecting me to her. Aamir, Svati, Satyajit, Advait, Vidhi, Prerna, Rahul , Lancy , Chandni, Subuhi –  the police has been raving about the episode on police reforms in  Satyamev Jayate. Mr. Deokhale from Bangur Nagar police station and others there asked me to thank you all for such a sensitive portrayal. They were very happy when they realized that I was a visible as a part of the family in Season 1.

I hope this post serves as a wake up call for dating sites which openly advertise about sex with minors. People making such requests could be nabbed and pushed behind bars. I will ensure that such cases are pursued till the logical end, even if it takes months or years to bring the culprit to book. If there needs to be a case registered against the dating site, shall look at that too,  that is only  if the administrators of the dating site don’t take action by disallowing/ banning posts that solicit sex with minors.

We cant stop child sexual abuse completely. But when we see something going awry, we could choose to do something about it. At least something more than simply intellectually masturbating about the issue, our first reaction should be to inform the police. Not be resigned about the issue and say “kuch nahi hoyega india ka”…. Or blame NGOs for it by saying “what is the use of so many NGOs when they cant keep a check on this”… let me ask you, if you are so damn concerned and your heart bleeds on seeing something like this happen – why don’t you fucking do something about it as a reflex action.

Tuesday, March 04, 2014

Side-Effects Of Shaadi Ke Side Effects

I had the august opportunity to watch this fantastic film called Shaadi ke side effects. Firstly, let me share that this is a breathtaking film, I am telling you with first hand experience, okay. It really took my breath. This is one of the very few film franchise models that India could flaunt about. The previous film by the same director (Saket whatever), was called Pyaar ke side effects, this one is Shaadi ke side effects,  for all we know the next film may be called Family ke side effects.  Though the films are not related to each other and are not a prequel-sequel  thing like Jurrassic Park, this film is as adventurous like Jurrassic Park. You get lost in the jungle of relationships. (o! I almost sound like a poet!)

The biggest and the most magnificent dinosaur of this film is the script writer. He has thought of a spectacular script that has never been thought before. Never ever.  Let me share - Married couple looking for spice in their  love life beyond vanilla fornication - wife nagging causing husband a lot of frustration - husband taking a vacation - while wife fakes a fuckation to win the husband’s lost attention - and the final revelation leading to the climax of true-love confession -  are not things that you have ever heard before in Indian cinema of this nation. Have we?  (Me poet became! Notice the alliteration {or whatever the figure of speech})

The treat, the delicacy of this film is the music. So what if you don’t tap your feet to it, you definitely would tap your head. The choreography makes you wonder if there has been a natural disaster – like an earthquake. The costume designer, takes the cherry and the cake , I read media reports that Vidya sat with her stylist Jayati and gave her inputs. So, you see Vidya donning a backless blue dress in the first short of her introduction.  The backless dress is so dangerously low that if it slipped any further, the film would end up as a sequel to Dirty Picture.  After this film, my respect for Vidya has grown four fold. Vidya doesn’t only pick up challenging roles; she picks up challenging clothes too.

Vidya,  I believe has sittings and sittings and sittings before she connects with the character in the film.  This she must have signed right at the first sitting. May be because her husband played by Farhan is called “Siddharth Roy”,  she must have been given to believe that this role was written for her. I want to marry the person who narrated the story to her. S/he/ze surely knows how to make the ride on a maruti 800 sound like a ride on merc. Super skilled, man, Super skilled to get both Farhan and Vidya in your net.
The actors bring finesse to the characters that they depict. Vidya and Farhan are established actors, and that shows in every frame. You also have names like Ram Kapoor and Gautami  playing (Vidya) Trisha’s sis and bro in law. You have Rati Agnihotri who plays  Trisha’s mom. The surprise package is Vir Das who plays (Farhan) Siddharth Roy’s messy roommate. He revels in the role of a Casanova. Though you wonder what he is doing in the film, the credit should go to Saket whatever for the etched out character though useless. Like, if you remove every single character of the film, you can see how beautifully Saket has hunted for second hand spare parts (read scripts) and made this movie vehicle.  Guess he picked up parts of the script from some garage sale for charity.


I know I didn't warn you about spoilers. But I am happy that I saved your money. But still if you insist on watching this film – please carry Saridon to save yourself from the side effects of shaadi ke side effects. So in effect, Shaadi Ke Side effects is about family planning.  It is an eye opener. Watch this film and understand how irritating heterosexual wives can be and how irresponsible heterosexual husbands can be.  And the core message that the film spreads is about children – and the turmoil in your love life- sex life - economic life they could cause when you bear one. It is a film that amazes you with the bitter taste. As a heterosexual rights activist, I propose a ban on this film. Or better still, a fatwa.  Or better than better, a dharna.

Rating :  are you like  ‘kidding me’?
Rainbow Quotient:   Someone mistakes Farhan and Vir Das to be a couple. To which Vir replies “NO”. though it does no harm,  it was not needed. A terrible forcefit.
Closing Words of Wisdom :  you have too much money, kyaa? Then please donate to a charity instead.


*the views expressed here are brutally honest and are obviously my own. I know you may find some comments in the review very insulting and that’s the intent – to not sugar coat. You can feel free to disagree with them. But rather than sending me a hate comment, I’d appreciate if you protest with another blogpiece.
 Ladaai ho toh barabar ki.  Poetic justice, honey, poetic justice! *

Thursday, February 27, 2014

An Ode to Veera

I am veera. I am the little child in the woods who lost her way in a garden full of daffodils. Just that I had to close my eyes and be oblivious to what was happening with my body. I am veera,  and I am 7 years old, I am told. And he was a man five times my age. He thrust himself on  me and  trapped me forever in a cage. I am veera,  I wanted to shout. I wanted to shout that one time. But I swallowed my words. I am veera, and I learnt then to swallow not just words but to live in two worlds. I am veera, on my body is a liquid, white and sticky.  What happened I didn't want to know. I didn't want to know what happened to me. I am veera, yes, I lived in two worlds. One when I was pushed and shoved, the other when the image in my mind was a garden full of daffodils. A garden where I played with butterflies, heard crow's cries, danced with the cuckoo and played with the doves. I am veera, there is quiet within me and there is din outside. There is din within me when there is quiet outside.  I am veera,  I am that girl who didn't know what was happening with her. Within her was a voice that spoke to her. The voice that uncaged her, and set her free. The voice that she longed for. I am veera, I am now old. The two voices are meeting. The real outside and the real inside. The voice inside is disappearing. I am getting more aware of what is happening. I am veera.  I am dying.  I am crying. I am thinking “ why am I bleeding and not pleading”. Not pleading to stop.  I am veera. Now there are four. Four men are here. And  I am lying in a pool of semen. I, but have learnt to not raise a voice. I am veera, I try to hint. But mummy didn't get it. She didn’t know. I am cold

I am veera. I am a scream. I am a dream. I am that voice that you hear. I am without fear. I am veera. Everything is hunky dory. I hide the gory in my visible glory. I am veera.   I want to go to the highway, spread my hands and dance away.  I am veera. I am older now. Much older. Now,  I fear no wilderness. I don’t mind flowing in desolate streams. I fear no violence, for all I have seen.  I am veera. I am not scared of your screams. I will listen to your voice. As I speak to my own. I am veera. I am someone who believes that every stone has a history. I think there was life in it too. I am veera. My middle name is empathy. I feel what you feel. I can hear the turmoil within you that even you cannot see.  I am veera. I am a stone. A stone unturned. I am a page. A blank one at that.  I am veera. I believe pain is a binder. I bind to it. I am veera. Deny me the riches. Leave me with the ones with glitches. Don’t bind me with your showy love. Leave me alone with my voices now. I am veera. I am living in a dream. I am a flowing stream. I am veera. I will flow out one day. I will flow out one day.

You must have chaos within you to give birth to a dancing star.” Said  Friedrich Nietzsche. And Imtiaz Ali depicted it to perfection in his film – Highway. Alia Bhatt has acted so well that you don’t see her in the film – you only see Veera. As a survivor of child sexual abuse myself,  I could connect with the character that Alia brings alive. I felt a part of me had gotten out and was on screen. That perfect she was. Child-like but a woman who was world-wise much before she wanted to be. Someone who is not insane, though her definition of  joys are unbelievably ordinary and plain. And Randeep Hooda’s character need not even have a name to relate to him. He is that good. You carry him along,  the characters linger on you even hours after you have left the theater.  Rehman has underplayed his music. Which music director of his caliber would do that to suit the mood of the film? And cinematography – WOW. There are many frames in the film that you would want to capture as a wallpaper. 

The film – HIGHWAY is not real, it is either a fantasy. Yet, it is both. A reality and an unbelievable story. Ask me, if I would react the way she did, with patience, and tact and knack. My answer would be in the affirmative. Highway is a film  about the voice of the child trapped within a survivor of child sexual abuse, and the woman in real life. It is about the duality in the mind of a survivor  that she/he dodges away and refuses to acknowledge. It is that uncomfortable truth of conflict between the reality and the dream. Highway builds the bridge for me.

http://en.wikipedia.org/wiki/Highway_(2014_Hindi_film)

Thursday, January 30, 2014

Decriminalize Love

I woke up today in disdain,
murky thoughts  of woe and pain


My thoughts wandered to pastures full of strife.
What do I do with this dreary life?


Some write right, some write left, some are ambidextrous,
the difference is universal, you want me to feel shame, you want me to digress.    


I love people, in nature's holy ways.
The law steps in but, judges me and showers dismay.

The body I am in, is the state’s property
what I do with it, is my country’s fantasy.


Tell me your honour, do I look like a criminal?
about my expression of love, why are you  being so anal?

Friday, January 03, 2014

14 Commandments For 2014

14 things that i need to keep telling my inner-voice all through 2014
#1. dont suffer fools. 
#2. dont engage in nonsensical debates with people who have all the time in the world. 
#3. use the time and energy saved in #2 for the kind of work that you wish to do.
#4. you dont need to explain to anybody why you love someone and why you dislike someone. you have your loyalties, your affinities and your hate lists. and you dont owe anyone an explaination for it.
#5. be direct. you dont need to "look good". you are not winning some congeniality contest, okay?
#6. if people think that they are the center of the universe. let them. in all probability their universe will be an island, with only them in it. you just chill in your pond swimming with your fishes in it. 
#7. remind yourself again and again that you are not superman. even superman fucks up. and you are allowed to too. 
#8. remember that the only thing that you should be procrastinating is procrastination. 
#9. never be disheartened by nasty gossips about you by the big-wigs. still respect them for their work. and respect the fact that they are human to be assholes. 
#10. start one campaign a month. something that will spread smiles and awareness on causes that you *heart*
#11. get a personal life. spend time with your new kids - Shiva and Krishna
#12. before you draw cash from the ATM to donate to some cause, remember, you could become a social cause tomorrow if you run out of a job, for you have no savings
#13. get hitched. have a love life. a sex life. and please delete people who write messages like "i want to have celebrity sex with you" from your life forever. if possible - shoot them. 
#14. read from #1 to #14 again. may be pin it up on the wall or something. because the fuck-headed that you are. you will do only what you have been doing. always. always. always.

Tuesday, December 24, 2013

Naz Foundation files review petition against the Supreme Court judgment on Section 377



24th December, 2013: The Naz Foundation (India) Trust, the original petitioner in the constitutional challenge to Section 377, IPC, has filed a petition seeking review of the judgment of the Hon'ble Supreme Court in Suresh Kumar Koushal v. Naz Foundation (India) Trust (Civil Appeal No. 10972 of 2013). On 11th December, 2013, the Hon'ble Supreme Court, in a regressive decision, has upheld the validity of Section 377, IPC that criminalises all penile non-vaginal sexual acts between consenting adults and has set aside the judgment of Delhi High Court of 2009 that had decriminalized adult consensual sexual acts in private.

Represented by Lawyers Collective, the Petition argues that there are a number of grave and manifest errors of law and wrong application of law in the impugned judgment that need to be corrected under review by this Hon'ble Court. The judgment is contrary to the grain of Hon'ble Supreme Court's own jurisprudence on advancement of fundamental rights and freedoms of all persons, especially those who face marginalisation in society. It completely dismisses the foreign jurisprudence from all over the world and international human rights law on sexual orientation and gender identity. Reliance on the principles of judicial restraint and Parliament's prerogative to change laws is misplaced, when the law has been challenged for violation of fundamental rights of individuals, as is being done in the present case. 

Seeking an interim stay on the operation of the judgment, the petition notes that it has caused immense prejudice to all adult persons who engage in consensual sex, particularly those from the Lesbian, Gay, Bisexual and Transgender community, who suddenly have been put at risk of prosecution under criminal law. In the last four years, many persons from the LGBT community have become open about their sexual identity and disclosed their intimate relationships on the basis of the High Court judgment decriminalising the same. 

The Petition further states that since it raises significant issues of constitutional import of substantial public interest and far reaching public importance, an oral hearing ought to be given by the Hon'ble Supreme Court.

Contact:

Anjali Gopalan, Naz Foundation (India) Trust: 0991030834 

Anand Grover, Lawyers Collective: 09820184788

Government Review Petition Against Section 377 (Full Text)

IN THE SUPREME COURT OF INDIA

 

CIVIL APPELLATE JURISDICTION

 

REVIEW PETITION (CIVIL) NO.            OF 2013

 

IN

 

CIVIL APPEAL NO. 10972 OF 2013

 

[AGAINST THE IMPUGNED JUDGMENT AND ORDER DATED 11.12.2013 PASSED BY THIS HON'BLE COURT IN CIVIL APPEAL NO. 10972 OF 2013]

 

IN THE MATTER OF:

 

UNION OF INDIA                                               … Petitioner

 

versus

 

 

SURESH KUMAR KOUSHAL & ANR.            … Respondents

 

 

PETITION FOR REVIEW UNDER

ARTICLE 137 OF THE CONSTITUTION OF INDIA READ WITH

ORDER XL OF THE SUPREME COURT RULES, 1966

 

 

to,

THE HON'BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE HON'BLE SUPREME COURT

 

The humble petition of the

Petitioners above named;

MOST RESPECTFULLY SHOWETH:

1.             The Petitioners above named respectfully submit the present petition seeking Review of the judgment dated 11.12.2013 passed by this Hon'ble Court in Civil Appeal No. 10972 of 2013 [arising out of SLP (C)          No. 15436 of 2009] ("impugned judgment"), and other connected matters, by which this Hon'ble Court set aside the Judgment and Order dated 2nd July, 2009, rendered by the Delhi High Court in Writ Petition (Civil) No. 7455 of 2001. 

2.       That, the brief facts relevant for the present case are as follows :-

(i)           NAZ Foundation filed WP (C) 7455/2001 before the Delhi High Court praying for grant of a declaration that Section 377 IPC to the extent it is applicable to and penalises sexual acts in private between consenting adults is violative of Articles 14, 15, 19(1)(a)-(d) and 21 of the Constitution.

(ii)          In September 2004, the Division Bench of the High Court dismissed the writ petition by observing that no cause of had accrued to Naz Foundation and purely academic issues could not be examined by the Court.

(iii)        The review petition filed by Naz Foundation was also dismissed by the High Court.

(iv)        An SLP was filed before this Hon'ble Court, which, vide its order dated 3.2.2006, allowed the appeal and remitted the writ petition for fresh decision by the High Court.

(v)         The High Court, on 3.7.2009, allowed the writ petition filed by the petitioners therein and read down Section 377 of the Indian Penal Code, 1860.  The Division Bench of the High Court, inter alia, concluded that "We declare that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. The provisions of Section 377 IPC will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors." 

(vi)        SLPs against the judgment and order of the High Court was filed by Suresh Kumar Koushal (a citizen of India who believed he had the moral responsibility and duty in protecting cultural values of Indian society) and others, who were not parties before the High Court. Some of them were intervenors before the High Court.

(vii)      This Hon'ble Court has set aside the aforesaid judgment of the Delhi High Court and has held that Section 377 IPC does not suffer from the vice of unconstitutionality and the declaration made by the Division Bench of the High Court is legally unsustainable.

 

3.             The Petitioner is preferring the present Review Petition under Article 137 of the Constitution of India, seeking review of the judgment of this Hon'ble Court dated 11.12.2013 which allowed Civil Appeal No. (C) 10972 of 2013, inter alia on the following:-

 

GROUNDS

 

A.       FOR THAT the impugned judgment suffers from errors apparent on the face of the record, and is contrary to well-established principles of law laid down by this Hon'ble Court enunciating the width and ambit of Fundamental Rights under Articles 14, 15 and 21 of the Constitution of India.

 

B.       FOR THAT Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution.

 

C.       FOR THAT this Hon'ble Court failed to consider that Section 377 which criminalizes intercourse 'against the order of nature' is a reflection of sodomy laws of the United Kingdom which were transplanted into India in 1860.  They do not have any legal sanctity and in any case are unlawful in view of the Constitutional mandate of Articles 14, 15 and 21 of the Constitution.

 

D.       FOR THAT this Hon'ble Court has held that a statute, which was justified when enacted, could, with the passage of time, become arbitrary and unreasonable.

 

E.       FOR THAT this Hon'ble Court, in Malpe Vishwanath Acharya v. State of Maharashtra, (1998) 2 SCC 1, held as under

 

"15. The aforesaid decisions clearly recognise and establish that a statute which when enacted was justified may, with the passage of time, become arbitrary and unreasonable…"

 

 

F.       FOR THAT this Hon'ble Court arrived at various conclusions which are contrary to well-established canons of law as laid down by this Hon'ble Court

 

G.      FOR THAT this Hon'ble Court failed to consider that the Union of India had taken a categorical stand that there was no legal error in the judgment of the High Court dated 2.7.2009, and, therefore, no appeal was filed by the Union of India against the said judgment.

 

It is submitted that an Affidavit was filed by the Union Home Secretary on 1st March, 2012 to this effect.

 

H.       FOR THAT the written submissions filed by the Learned Attorney General for India, it was categorically submitted with regard to the position of the Union of India as under:

"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."

 

I.          FOR THAT this Hon'ble Court did not deal not with the submissions made by the Learned Attorney General, which articulated the stand of the Union of India. It is submitted that whilst in para 21 of the impugned judgment, the Learned Judges noted the submissions made by the Learned Attorney General, the same are not dealt with in the judgment.

 

J.        FOR THAT the Petitioner had found no legal error in the High Court decision and thus had accepted the correctness of the same.

 

K.       FOR THAT it is a settled principle of law that it is the Executive, i.e., the Government, that defends the constitutionality of statutes before this Hon'ble Court.

 

L.        FOR THAT this Hon'ble Court could not have ignored the fact that the Union of India had made a considered decision not to challenge the High Court decision and had accepted the verdict that Section 377 was unconstitutional, in so far as it criminalised adult consensual sexual acts in private.

 

M.      FOR THAT the SLPs ought to have been dismissed at the admissibility stage itself, on the ground that the Delhi High Court judgment dated 2nd July, 2009 was challenged mostly by third parties, who were not party to the original writ petition in the High Court.

 

As submitted earlier, it is the prerogative of the State to defend the constitutionality of statutes, and not that of third parties.

 

N.       FOR THAT if a statute is declared unconstitutional, Parliament has no further role to play to add to or endorse a judicial declaration.

 

O.      FOR THAT while law-making is the sole responsibility of the Parliament, it is the task of this Hon'ble Court to judge the constitutional validity of laws.

 

P.       FOR THAT non-amendment of law by the Parliament, especially a pre-Constitutional law, is not a limitation on the power of judicial review.

 

Q.      FOR THAT it is not necessary that statutory provisions which have been found to be unconstitutional must, as a matter of rule, be removed from their parent statute. In Minerva Mills v. Union of India, (1980) 3 SCC 625, judgment, this Hon'ble Court struck down Articles 368(4) and (5), as they interfered with the ability of this Hon'ble Court to review constitutional amendments. However, the latest text of the Constitution continues to includes Articles 368(4) and (5), even though they were declared unconstitutional long ago.

 

R.       FOR THAT the impugned judgment suffers from glaring legal errors  and seeks to invoke certain legal principles which were  inapplicable in the facts of the present case. 

 

S.       FOR THAT it is the bounden duty of this Hon'ble Court, as the protector and guarantor of fundamental rights of people, to strike down any law that violates the fundamental rights.

 

T.       FOR THAT this Hon'ble Court failed to appreciate the abovementioned principle of law when it held, in para 32 that:

"Applying the afore-stated principles to the case in hand, we deem it proper to observe that while the High Court and this Court are empowered to review the constitutionality of Section 377 IPC and strike it down to the extent of its inconsistency with the Constitution, self restraint must be exercised and the analysis must be guided by the presumption of constitutionality"

 

U.       FOR THAT this Hon'ble Court is duty-bound to strike down a provision in a statute that is unconstitutional or a restriction which violates a fundamental right.

 

V.       FOR THAT this Hon'ble Court did not consider the law as laid down in Peerless General Finance and Investment Co. Ltd. v. RBI, (1992) 2 SCC 343, wherein it was held that:

"47. ...  It is the duty of the Court to be watchful to protect the constitutional rights of a citizen as against any encroachment gradually or stealthily thereon....

 

... But the Court is entitled to consider whether the degree and mode of the regulation is in excess of the requirement or is imposed in an arbitrary manner. The Court has to see whether the measure adopted is relevant or appropriate to the power exercised by the authority or whether it overstepped the limits of social legislation. Smaller inroads may lead to larger inroads and ultimately result in total prohibition by indirect method. If it directly transgresses or substantially and inevitably affects the fundamental right, it becomes unconstitutional, but not where the impact is only remotely possible or incidental. The Court must lift the veil of the form and appearance to discover the true character and the nature of the legislation, and every endeavour should be made to have the efficacy of fundamental right maintained and the legislature is not invested with unbounded power. The Court has, therefore, always to guard against the gradual encroachments and strike down a restriction as soon as it reaches that magnitude of total annihilation of the right.

 

W.     FOR THAT it is the duty of this Hon'ble Court to guard against the encroachment of a right and to strike down a restriction as soon as it threatens to annihilate a right.

 

X.       FOR THAT it is well-settled that Judges of this Hon'ble Court act as sentinels on the quive when it comes to the preservation of rights guaranteed under the Constitution and it is their duty to uphold the principles and provisions laid down in the Constitution.

 

Y.       FOR THAT this Hon'ble Court did not consider the law as laid down in State of Punjab v. Dalbir Singh, (2012) 3 SCC 346, where it was held as under:

"33. The Judges of this Court have taken an oath to uphold and preserve the Constitution and it is well known that this Court has to protect the Constitution as a sentinel on the qui vive against any abridgment of its principles and precepts."

 

 

Z.       FOR THAT a 3 Judge Bench of this Hon'ble Court, in Asif Hameed v. State of J & K, 1989 Supp (2) SCC 364, held that:

"19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action...."

 

 

AA.   FOR THAT Justice Singhvi, in the case of A. Manjula Bhashini v. A.P. Women's Coop. Finance Corpn. Ltd., (2009) 8 SCC 431, held that:

"67. The distinction between legislative and judicial functions is well known. Within the scope of its legislative competence and subject to other constitutional limitations, the power of the legislature to enact laws is plenary. In exercise of that power, the legislature can enact law prospectively as well retrospectively. The adjudication of the rights of the parties according to law enacted by the legislature is a judicial function. In the performance of that function, the court interprets and gives effect to the intent and mandate of the legislature as embodied in the statute. If the court finds that the particular statute is ultra vires the power of legislature or any provision of the Constitution, then the same can be struck down."

 

 

BB.   FOR THAT there have been instances where this Hon'ble Court has not waited for the Parliament to amend the law, and has gone on to strike down the law when it has demonstrated that the law was unconstitutional.

 

CC.  FOR THAT this Hon'ble Court, in Mithu v. State of Punjab, (1983) 2 SCC 277, did not wait for Parliament to revise the IPC, even though an amendment had been introduced in 1972 and went on to hold the provision as unconstitutional.

 

DD.  FOR THAT the principles of presumption of constitutionality and the principle of judicial restraint were neither applicable nor relevant in the facts and circumstances of the present case. 

 

EE.   FOR THAT presumption of constitutionality has no relevance when a violation of constitutional provisions has been demonstrated.

 

FF.   FOR THAT in the case of K.R. Lakshmanan (Dr) v. State of T.N., (1996) 2 SCC 226, a bench of 3 Learned Judges of this Hon'ble Court held that:

 

47. ... It is true that the presumption is in favour of the constitutionality of a legislative enactment and it is to be presumed that a legislature understands and appreciates the needs of its own people, but when on the face of the statute there is no classification and no attempt has been made to select an individual with reference to any differentiating attributes peculiar to that individual and not possessed by others, the presumption is of no assistance to the State...

 

GG. FOR THAT in the present case, the Learned Judges, without at all adverting to the arguments, submissions and compendium of materials which were placed before them to show how the provision of Section 377 ipso facto violates the provisions of Article 14, 15 and 21 of the Constitution, applied the principle of presumption of constitutionality in favour of Section 377.

 

HH.  FOR THAT in John Vallamattom v. Union of India, (2003) 6 SCC 611, which was noticed by this Hon'ble Court in the impugned judgment, the issue was with respect to the constitutionality of Section 118 of the Indian Succession Act, a pre-Constitutional statute, which was based on the Mortmain and Charitable Uses Act, 1888 of England. In the said judgment, it was held as under:

"60. In my opinion, there is no justification in retaining the impugned provision in the statute-book, which is arbitrary and violative of Article 14 of the Constitution, since the Mortmain statute was repealed by the Charities Act, 1960 and by that the very basis and foundation of the impugned provision has become non-existent."

 

It is submitted that the same logic would apply on all the fours in the present case. Section 377 could not have stood in the statute book, as the British Parliament de-criminalized homosexuality through the Sexual Offences Act in 1967. Following this, many other countries decriminalized homosexuality.

 

II.        FOR THAT in para 32 of the impugned judgment, this Hon'ble Court observed as under:

"The 172nd Law Commission Report specifically recommended deletion of that section and the issue has repeatedly come up for debate.   However, the Legislature has chosen not to amend the law or revisit it.  This shows that Parliament, which is undisputedly the representative body of the people of India has not thought it proper to delete the provision.  Such a conclusion is further strengthened by the fact that despite the decision of the Union of India to not challenge in appeal the order of the Delhi High Court, the Parliament has not made any amendment in the law. While this does not make the law immune from constitutional challenge, it must nonetheless guide our understanding of character, scope, ambit and import."

 

It is respectfully submitted that the observations of this Hon'ble Court in this regard are completely erroneous.  The superior judiciary of the country under the Constitutional Scheme has been invested with the powers of judicial review under the scheme of our Constitution.  The powers of judicial review of legislation are not "guided by Parliamentary processes". 

It is further submitted that the only guiding factor is violation of the provisions of the Constitution. It is submitted that the Hon'ble Court  in arriving at its conclusions has  been 'guided'  by completely wrong  assumptions of law. 

 

JJ.     FOR THAT whether a law is Constitutional or not is certainly not dependent upon whether the legislature has thought it fit to retain a provision in the statute or not. It depends on whether that provision in effect violates the provisions of the Constitution. 

 

KK.   FOR THAT the mere factum of retention of a provision in a statute cannot infuse life into the provision which is otherwise unconstitutional.  It is submitted that the Hon'ble Court in the impugned order has unfortunately lost sight of this basic principle of judicial review. This approach is not only wrong but has never deterred judicial review.  If followed, it will make judicial review effete.

 

 

LL.    FOR THAT the fact that Parliament is the representative body of the people of India cannot be a factor when considering Section 377.

 

As observed by the Learned Judges themselves, the IPC along with Section 377 as it exists today was passed by the Legislative Council and the Governor General assented to it on 6.10.1860. It is submitted that the Council consisted of Englishmen. Therefore, it cannot be said Section 377 represented the will of Indian Parliament.

 

MM. FOR THAT this Hon'ble Court arrived at an erroneous conclusion in para 33 of the impugned judgment that "this Court is not empowered to strike down a law merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need."

 

NN.  FOR THAT the reasoning of this Hon'ble Court flies in the face of a catena of judgments of this Hon'ble Court which have in unequivocal terms laid down that laws cannot be interpreted or adjudicated upon in vacuum and that laws must be interpreted in the light of changing social values. 

 

OO. FOR THAT Bhagwati, J., writing for a bench of 5 Hon'ble Judges in National Textile Workers' Union v. P.R. Ramakrishnan, (1983) 1 SCC 228,  observed that the law must  be interpreted keeping in mind change  in social concepts and values, and the law must respond to the needs of a changing society. The relevant extract in this regard reads as under:

"9. … We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind. It must shake off the inhibiting legacy of its colonial past and assume a dynamic role in the process of social transformation. We cannot therefore mechanically accept as valid a legal rule which found favour with the English courts in the last century when the doctrine of laissez-faire prevailed. It may be that even today in England the courts may be following the same legal rule which was laid down almost a hundred years ago, but that can be no reason why we in India should continue to do likewise. It is possible that this legal rule might still be finding a place in the English textbooks because no case like the present one has arisen in England in the last 30 years and the English courts might not have had any occasion to consider the acceptability of this legal rule in the present times. But whatever be the reason why this legal rule continues to remain in the English textbooks, we cannot be persuaded to adopt it in our country, merely on the ground that it has been accepted as a valid rule in England. We have to build our own jurisprudence and though we may receive light from whatever source it comes, we cannot surrender our judgment and accept as valid in our country whatever has been decided in England

 

PP.   FOR THAT in Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, (1974) 2 SCC 402, this Hon'ble Court reiterated its earlier stand that the law is not static and that it must adapt itself to cope with new situations. It was held as under:

"22 ... As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself. There should not be much hesitation to abandon an untenable position when the rule to be discarded was in its origin the product of institutions or conditions which have gained a new significance or development with the progress of years. It sometimes happens that the rule of law which grew up in remote generations may in the fullness of experience be found to serve another generation badly. The Court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience. The Court has to keep the balance between the need of certainty and continuity and the desirability of growth and development of law. It can neither by judicial pronouncements allow law to petrify into fossilised rigidity nor can it allow revolutionary iconoclasm to sweep away established principles"

 

QQ. FOR THAT in Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, it was held that

"16. ... The inevitable truth is that law is not static and immutable but ever increasingly dynamic and grows with the ongoing passage of time.

 

17. So it falls upon the superior courts in a large measure the responsibility of exploring the ability and potential capacity of the Constitution with a proper diagnostic insight of a new legal concept and making this flexible instrument serve the needs of the people of this great nation without sacrificing its essential features and basic principles which lie at the root of Indian democracy....it is by now well settled by a line of judicial pronouncements that it is emphatically the province and essential duty of the superior courts to review or reconsider their earlier decisions, if so warranted under compelling circumstances and even to overrule any questionable decision, either fully or partly, if it had been erroneously held and that no decision enjoys absolute immunity from judicial review or reconsideration on a fresh outlook of the constitutional or legal interpretation and in the light of the development of innovative ideas, principles and perception grown along with the passage of time. This power squarely and directly falls within the rubric of judicial review or reconsideration

 

RR.  FOR THAT this Hon'ble Court, in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu, 1991 Supp (2) SCC 228, held as under:

"20. ... Law is not static. The purpose of law is to serve the needs of life." The law should, therefore, respond to the clarion call of social imperatives (sic and) evolve in that process functional approach as means to subserve "social promises" set out in the Preamble, Directive Principles and the Fundamental Rights of the Constitution."

 

SS.   FOR THAT in Deena v. Union of India, (1983) 4 SCC 645, this Hon'ble Court held:

"4 ... No one of course can question that law is a dynamic science, the social utility of which consists in its ability to keep abreast of the emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends. Life is not static. The purpose of law is to serve the needs of life. Therefore law cannot be static. But, that is not to say that judgments rendered by this Court after a full debate should be reconsidered every now and then and their authority doubted or diluted. That would be doing disservice to law since certainty over a reasonably foreseeable period is the hallmark of law.

 

TT.   FOR THAT law does not operate in a vaccum but in a social context.  There has been a sea-change, not just in India, but all over the world, with respect to the law on homosexuality. It is submitted that a majority of the countries across the world have legalized homosexuality.

 

UU.  FOR THAT even in India, Section 377 was introduced not as a reflection of existing Indian values and traditions, but rather, it was imposed upon Indian society due to the moral values of the colonizers. Indian society prior to the enactment of the IPC had a much greater tolerance towards homosexuality.

 

VV.   FOR THAT this Hon'ble Court has failed to consider the dynamic nature of the law, particularly with respect to homosexuality.

 

It is submitted that the view adopted by this Hon'ble Court is contrary to the principles enshrined in the law down , i.e. that the Court cannot allow itself to be tied down by and become captive of a view which in the light of the subsequent experience has been found to be patently erroneous, manifestly unreasonable or to cause hardship or to result in plain iniquity or public inconvenience.  

 

WW.   FOR THAT like any other law, the concept of "against the order of nature" will not be static, and not the same as it was in 1860.

 

XX.   FOR THAT this Hon'ble Court, whilst drawing a distinction between the two alleged 'classes', does not shed any light on what comes within the ambit of 'against the order of nature'. (para 38)

 

YY.   FOR THAT this Hon'ble Court makes self-contradictory observations in paras 38 and 42 of the impugned judgment. In para 38, it is observed that "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". However, the opening words of para 42 are "Those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes...", thereby referring to 'particular people'.

 

 

ZZ.   FOR THAT this Hon'ble Court has erred in holding that Section 377 has been used mostly in cases of non-consensual and markedly coercive situations, as evident from the case laws and expresses apprehension whether the Court would rule similarly in a case of proved of consensual intercourse between adults. (para 38). This was precisely the issue before this Hon'ble Court, i.e., whether adult consensual sexual acts should be criminalised or not. It was not a subject matter of speculation before this Hon'ble Court. This Hon'ble Court thus has failed to exercise its  jurisdiction in the present case

 

AAA.  FOR THAT a perusal of para 40 of the impugned judgment shows that the Learned Judges have completely misconstrued the argument made. It is submitted that the arguments and the submissions made were not only that the sexual minorities were being discriminated by the State or its agency but the thrust of the argument was that the provision, as it exists, seeks to criminalize consensual sexual activity of two adults, which was against the constitutional ethos of equality and liberty.  This aspect of the matter has not at all been dealt with or considered at all by this Hon'ble Court.

 

BBB.  FOR THAT in para 42 of the judgment the learned judges  summarily come to a conclusion that there was no violation of Article 14 and 15, without really analyzing the import and relevance of these two Articles.

 

It is submitted that lengthy arguments and submissions were made on how Section 377 offends the mandate of Article 14 and Article 15.  The impugned order has dealt with Articles 14 and 15 in one para by stating that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling in the later category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification.  It is submitted that the Learned Judges have refrained from dealing with or considering the true import of Article 14.  The arguments were not merely that there was irrational classification but also that there was no nexus and further that this was arbitrary. 

 

CCC. FOR THAT there is no reason as to why these the two classes referred to in Section 377, i.e., those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature, should be treated differently, because both classes refer to consensual acts. As stated above, this Hon'ble Court did not shed any light on what constituted carnal intercourse 'against the order of nature'.

 

DDD. FOR THAT criminalising consenting sex between adults in private without evidence of serious harm was arbitrary and unreasonable.

 

EEE.  FOR THAT this Hon'ble Court has erred in holding that the classification between carnal intercourse in the ordinary course of nature and carnal intercourse against the order of nature is valid and not arbitrary (para 42), without addressing the second limb of the classification test, i.e., there has to be a rational nexus between the classification and the object of legislation. This Hon'ble Court ought not to have to upheld the said classification, in the absence of recording a finding on the rational nexus with the object of legislation. 

 

FFF.   FOR THAT this Hon'ble Court has erred in not recording a finding whether Section 377 is vague and arbitrary and thus violates Article 14, as argued by the Respondents.

 

GGG.                FOR THAT this Hon'ble Court itself notes that no uniform tests can be culled to classify acts that would be covered under carnal intercourse against the order of nature (para 38).

 

HHH. FOR THAT it is well-settled that lack of uniformity in application of penal law results in uncertainty and arbitrariness and may render the law unconstitutional on the ground of vagueness.

 

III.      FOR THAT this Hon'ble Court has completely failed to consider whether Section 377 violates Article 15, as argued by the Respondents and as held by the High Court that sexual orientation is a ground analogous to sex and that discrimination on the basis of sexual orientation is not permitted by Article 15 (para 104 of the High Court judgment).

 

JJJ. FOR THAT this Hon'ble Court has failed to record a finding whether Section 377, which criminalises penile-non vaginal sexual acts for all, violates the right to privacy of individuals or not, as argued by the Respondents, in light of the Court's own holding that Section 377 is applicable, irrespective of age and consent. (para 38)

 

KKK.  FOR THAT Article 21 protects the right to privacy of all persons, including the right to form intimate and sexual relationships between consenting adults. Section 377 criminalizes penile-non-vaginal sexual acts, i.e., penile-anal and penile-oral sex, for all, including both heterosexual and homosexual persons, and thus constitutes a clear violation of the right to privacy. This Hon'ble Court has not addressed this issue at all, despite a clear finding from the High Court on the same (paras 47-48 of the High Court judgment).

 

LLL.FOR THAT this Hon'ble Court has failed to record a finding whether criminalisation of intimate sexual conduct of individuals impairs the dignity of persons under Article 21 or not, as argued by the Respondents.

 

MMM.               FOR THAT Section 377, by proscribing certain sexual acts between consenting adults in private, demeans and degrades the dignity of all individuals, irrespective of their sexual orientation. In particular, Section 377 criminalises the only form of sexual expression, i.e., penile-oral or penile-anal sex, of the homosexual men and transgender/hijra persons. This strikes at the root of the dignity and self-worth of the homosexual men and transgender/hijra persons. This Hon'ble Court has not addressed this issue at all, despite a clear finding from the High Court on the same (paras 48-52 of the High Court judgment).

 

NNN. FOR THAT this Hon'ble Court has failed to consider whether Section 377 violates the right to health of men who have sex with men, as argued by the Respondents and the Union of India. Criminalisation of same sex activity impedes access to health services as well as makes it difficult for the State to reach out to these populations, who remain underground due to fear of law. This hampers the effectiveness of major health interventions, including the HIV prevention programs.

 

OOO.                FOR THAT the High Court of Delhi had come to a specific conclusion that Section 377 hindered public health intervention efforts (paras 71-74 of the High Court decision), which has been completely ignored by this Hon'ble Court.

 

PPP.  FOR THAT in para 43 of the impugned judgment, this Hon'ble Court has erroneously come to the following conclusion:

 

"While reading down Section 377 IPC, the Division Bench of the High Court overlooked that a miniscule fraction of the country's population constitute lesbians, gays, bisexuals or transgenders and in last more than 150 years less than 200 persons have been prosecuted (as per the reported orders) for committing offence under Section 377 IPC and this cannot be made sound basis for declaring that section ultra vires the provisions of Articles 14, 15 and 21 of the Constitution."

 

 

QQQ.                FOR THAT this observation of this Hon'ble Court flies in the face of well-established constitutional jurisprudence which has unequivocally and categorically laid down that the extent of violation of fundamental rights is not the determinator of whether a Statute is constitutional or not but the fact of whether the Statute in fact infracts fundamental rights.

 

RRR. FOR THAT  this Hon'ble Court did not consider the fact that a Bench of 5 Judges of this Hon'ble Court, while dealing with the Commissions of Enquiry Act in Ram Krishna Dalmia v. Justice S.R. Tendolkar, AIR 1958 SC 538, held that a law can be held to be constitutional even if it relates to one individual. In this regard, the relevant extract reads as under:

"11. … (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself;"

 

SSS.  FOR THAT the abovementioned extract of the judgment in Dalmia's case was noticed by a bench of 2 Learned Judges (of which Justice Singhvi was a member) in para 17 of Satyawati Sharma v. Union of India, (2008) 5 SCC 287.

 

TTT.   FOR THAT it is clear that the number of people affected is irrelevant when it comes to deciding an issue of constitutionality. This Hon'ble Court, when arriving at this observation, did not take into account settled law on the subject. 

 

UUU. FOR THAT Dalmia's principle has been followed in a catena of judgments of this Hon'ble Court, the latest being the judgment in the case of Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, where this Hon'ble Court held that:

"530. ... If even one individual's freedom has been curtailed, this Court is duty-bound to entertain his or her claim..."

 

 

VVV.  FOR THAT Hon'ble Court has completely ignored the affidavits filed by the Ministry of Health and Family Welfare in 2006 in the High Court and in 2012 in this Court that categorically stated that fear of harassment from law enforcement agencies has driven the MSM community underground and away from essential health services, resulting in risky sexual practices and increased vulnerability to HIV (para 7 of the MOHFW's affidavit named 'Concerns of Ministry of Health'). This clearly showed that the Petitioner believed that Section 377 acted as an impediment to public health interventions.

 

WWW.             FOR THAT the present review petition is being filed to avoid grave miscarriage of justice to thousands of LGBT persons who have been aggrieved by the order dated 11.12.2013 of this Hon'ble Court and have been put at risk of prosecution and harassment, upon re-criminalization of their sexual identities.

 

XXX.  FOR THAT following the High Court judgment that decriminalized 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

 

PRAYER

It is most respectfully prayed that this Hon'ble Court may be pleased to :

 

A)      Allow the present Review Petition seeking review of the judgment dated 11.12.2013 passed by this Hon'ble Court in Civil Appeal No. 10972 of 2013,

 

B)      Pass such other and further order(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of this case.

 

AND FOR THIS ACT OF KINDNESS, THE PETITIONER, AS IN DUTY BOUND, SHALL EVER PRAY.

 

     (ADVOCATE FOR THE PETITIONER)

 

Drawn by:  Devadatt Kamat

                   Anoopam N. Prasad

 

Settled by: G.E. Vahanvati, Attorney General for India

 

Date of Filing:

Place of Filing:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AFFIDAVIT

I,  _________________S/o _____________, aged about _______ years, working as ______________ presently at New Delhi do hereby solemnly affirm and declare as under:

 

1.  That I am Petitioner in the above matter and as such I am fully conversant with the facts of the case and am competent to depose to this affidavit.                               

 

2.  That I have read and understood the contents of paras 1 to _____    of the accompanying Review Petition and Synopsis and List of Dates at Pages     to        and I.A.   I say that the facts stated therein are true and correct to my knowledge and belief.  

 

3.  The contents of the I.A. are true and correct and nothing false has been stated therein.

 

 

DEPONENT

 

VERIFICATION

I, the above named deponent do hereby verify that the contents of paras 1 to 3 of this affidavit are true and correct to be best of my knowledge and belief and nothing material  has been concealed therefrom.

DEPONENT

 

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