PILSARC Editorial
How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.
The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.
In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.
Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.
PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.
Tuesday, July 28, 2009
Thursday, July 23, 2009
Mother's Right to Choose
Mother's Right to Choose
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Tuesday, July 21, 2009
Stop the Madness
PILSARC Editorial
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
Without Prejudice
WITHOUT PREJUDICE
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
Monday, July 13, 2009
Babri Masjid - Time for Truth and Reconciliation
Babri Masjid - Time for Truth and Reconciliation
Rajeev Dhavan
From a totally different viewpoint, kavivar Bachchan’s words come to mind: Kya bhuloon, kya yaad karoon mai? (What shall I forget, what shall I remember?). Is the destruction of Babri Masjid to be forgotten? As part of the triumph of ‘forgetting’ over truth? After 17 years, is the Liberhan Report irrelevant? Are we no longer interested in the truth?
There are many ways to perceive the fall of Babri Masjid. Counsel for UP simply told the Court “I hang my head in shame”. Introducing the BJP White Paper (February 1993) L.K. Advani unrepentantly praised the “kar sevaks … for erasing a symbol of our subjugation (and) … begin building a symbol of resurgence (to show us) as if in a flash how far we have to travel”. Secularists found the act “barbaric”. 6 December 1992 was a watershed in India’s secular governance. Before there were communal riots, the wanton slaughter of the Sikhs in 1984 and rath yatras. Religion took politics by storm. But 6 December 1992 was the remorseless destruction of a mosque.
There is little point in talking of historical revenge. After 1947, citizens simply cannot destroy a religious building they don’t like. The suit was pending. The Constitution disallows such sacrilege. 6 December 1992 sends a chilling message that lumpen Hindus provoked by the Sangh Parivar can always terrorize any community or their mosques, churches, holy places with total impunity. After Babri Masjid fell, there were ‘no-holds-barred’. No one could touch these marauders. Photographs identifying the miscreants were available, they were not ferreted out. Everyone was interested in getting the big-wigs (Advani, Joshi, Uma Bharati). Even that was botched up. After 1992, all hell broke loose against Christians, Muslims and others. Revd. Staines and his sons were murdered. In Bombay, police joined the Hindu rioters with action and inaction to murder Muslims. Muslim painters like Hussain were harassed. The Godhra riots in 2002 showed how a pro Sangh Parivar state of Gujarat can permit the killing of Muslims with impunity. Art galleries and libraries were ransacked. A terrifying politically inspired and protected Hindu fundamentalism was let loose with satanic results.
Should 6 December 1992 be forgotten? On what terms? Just because the Liberhan Report has been egregiously delayed does not mean it can be ignored. Clearly the BJP and Sangh Parivar (as self evident from repeated statements) applaud 6 December. They now want the Mathura and Benares mosques; or any other. There is some confusion over PN Oak’s thesis that the Taj Mahal was originally a temple! But the Taj Mahal is too secularly ‘sacral’ to invite such sacrilege! Who knows?
Now what is to be done with the Liberhan Report? The legal significance of a commission’s Report is that it is fact-finding. No further prosecutions may flow from it. Somehow in India we take the shameless view that public indictment is not enough. Our leaders only fear the public humiliation of criminal conviction. Advani was cleared by Mr. Jethamalini in the Hawala transactions on a technicality. Sibal got Narsimha Rao on the MP bribery case. Both these lawyers were politically rewarded. No one is interested in the truth. No one will accept the truth and bow out of political life. We live in a political milieu of save-your-hide-at-all-costs.
The Liberhan Report has all the hype of a make believe ‘who-dunn-it-mystery’. What was the role of Joshi, Advani, Vijay Raje Scindhia, Ashok Singhal and others who watched from a terrace? There is a great moral obfuscation. The Advani-Joshi rath yatras were uncompromisingly for kar sevaks on the site of the Masjid. The provocation was clear. After the site fell, L.K. Advani’s preface to the BJP White Paper praised the kar sevaks for their historic destruction. Ruchira Gupta’s evidence to the Liberhan Commission on 14 November 2006 stated when the second dome fell Uma Bharati hugged Joshi with joy. Mrs. Scindhia said, “Ab meri ankhon ko shanti mili hai (my eyes are at peace now). Meanwhile, Ruchira was attacked, under the cry “Mussalman! Mussalman!” Reportedly, Advani was concerned that the kar sevaks might get hurt! When asked by Ruchira (to whom Advani had given his binoculars) why did Advani not stop the mayhem, he was quiet. Ruchira Gupta had accompanied Advani for the last four days. Advani was clear that he was not going to sweep the floor on the site. It was kar seva at all costs. He “swore by Ram that the mandir will be built here.”
We are not here concerned with the criminal conspiracy cases going on in Rae Bareilly and Lucknow. The law will take its course. But Commissions of Inquiry are not concerned with criminal liability but fact-finding. In this case, the purpose of the Commission was also to consider who is morally and politically culpable? Due to Commission reports, TT Krishnamachari and Kairon resigned in the 1950s. The idea behind a Commission, is partly to shame even the shameless and to ensure that what happens shall never happen again. In the case of the Babri Masjid, there was a comprehensive failure – by the BJP and Sangh Parivar, the State of UP which did not use the centre’s battalions and the Centre standing idly by Kalyan Singh was found in contempt of the Supreme Court. Narsimha Rao’s contempt was never decided by the Supreme Court when he was alive. Unfortunately, everyone – no less the media – feels that the only significance of the Liberhan Commission is whether it can be the basis of criminal liability.
There is an unfortunate controversy about whether Liberhan had treated Advani lightly. The former counsel to the Commission Mr. Anupam Gupta has gone public to suggest Liberhan took a ‘soft’ approach in this regard. This is unpleasant, a breach of responsibility and unfair. Liberhan denies all this. His distinguished record as a judge and Chief Justice of Madras and Andhra would not suggest susceptibility to bias. I argued Jaylalitha’s case before him for two years. He was impeccable. Like Justice Wadhwa’s report on the Staines matter he might have become ambivalent. But, we will have to wait.
The Liberhan Report must also depend on how we (the public) receive it and are prepared to receive it. There is a moral plane at which all governance works. Advani supported and provoked the kar seva, watched like Nero from the terrace and wrote an introduction to the BJP supporting this sacrilege as the correct moral and political thing to do. He does not want to own up to criminal conspiracy. But, he does own up to the sacrilege as a good thing – pointing to historical revenge as a reason. Basically, he seems to be saying, “I approve the destruction of the masjid. I saw its fall. I urged the kar seva and mobilized thousands. I watched from the terrace and joined the jubilation. I wanted it done. But I did not do it.” Today the official policy of the Sangh Parivar and BJP is that such destructions are good.
It is this official policy that makes the destruction of the Babri Masjid significant and divides the nation apart; and will continue to do so.
The Liberhan Report and the government’s Action Taken Report will help us review our conscience so that this kind of incident never happens again. But the Report should be released and not kept secret because the government’s ministers are slow at reading; and even slower at making up their mind. Our next step should be truth and reconciliation.
Rajeev Dhavan
From a totally different viewpoint, kavivar Bachchan’s words come to mind: Kya bhuloon, kya yaad karoon mai? (What shall I forget, what shall I remember?). Is the destruction of Babri Masjid to be forgotten? As part of the triumph of ‘forgetting’ over truth? After 17 years, is the Liberhan Report irrelevant? Are we no longer interested in the truth?
There are many ways to perceive the fall of Babri Masjid. Counsel for UP simply told the Court “I hang my head in shame”. Introducing the BJP White Paper (February 1993) L.K. Advani unrepentantly praised the “kar sevaks … for erasing a symbol of our subjugation (and) … begin building a symbol of resurgence (to show us) as if in a flash how far we have to travel”. Secularists found the act “barbaric”. 6 December 1992 was a watershed in India’s secular governance. Before there were communal riots, the wanton slaughter of the Sikhs in 1984 and rath yatras. Religion took politics by storm. But 6 December 1992 was the remorseless destruction of a mosque.
There is little point in talking of historical revenge. After 1947, citizens simply cannot destroy a religious building they don’t like. The suit was pending. The Constitution disallows such sacrilege. 6 December 1992 sends a chilling message that lumpen Hindus provoked by the Sangh Parivar can always terrorize any community or their mosques, churches, holy places with total impunity. After Babri Masjid fell, there were ‘no-holds-barred’. No one could touch these marauders. Photographs identifying the miscreants were available, they were not ferreted out. Everyone was interested in getting the big-wigs (Advani, Joshi, Uma Bharati). Even that was botched up. After 1992, all hell broke loose against Christians, Muslims and others. Revd. Staines and his sons were murdered. In Bombay, police joined the Hindu rioters with action and inaction to murder Muslims. Muslim painters like Hussain were harassed. The Godhra riots in 2002 showed how a pro Sangh Parivar state of Gujarat can permit the killing of Muslims with impunity. Art galleries and libraries were ransacked. A terrifying politically inspired and protected Hindu fundamentalism was let loose with satanic results.
Should 6 December 1992 be forgotten? On what terms? Just because the Liberhan Report has been egregiously delayed does not mean it can be ignored. Clearly the BJP and Sangh Parivar (as self evident from repeated statements) applaud 6 December. They now want the Mathura and Benares mosques; or any other. There is some confusion over PN Oak’s thesis that the Taj Mahal was originally a temple! But the Taj Mahal is too secularly ‘sacral’ to invite such sacrilege! Who knows?
Now what is to be done with the Liberhan Report? The legal significance of a commission’s Report is that it is fact-finding. No further prosecutions may flow from it. Somehow in India we take the shameless view that public indictment is not enough. Our leaders only fear the public humiliation of criminal conviction. Advani was cleared by Mr. Jethamalini in the Hawala transactions on a technicality. Sibal got Narsimha Rao on the MP bribery case. Both these lawyers were politically rewarded. No one is interested in the truth. No one will accept the truth and bow out of political life. We live in a political milieu of save-your-hide-at-all-costs.
The Liberhan Report has all the hype of a make believe ‘who-dunn-it-mystery’. What was the role of Joshi, Advani, Vijay Raje Scindhia, Ashok Singhal and others who watched from a terrace? There is a great moral obfuscation. The Advani-Joshi rath yatras were uncompromisingly for kar sevaks on the site of the Masjid. The provocation was clear. After the site fell, L.K. Advani’s preface to the BJP White Paper praised the kar sevaks for their historic destruction. Ruchira Gupta’s evidence to the Liberhan Commission on 14 November 2006 stated when the second dome fell Uma Bharati hugged Joshi with joy. Mrs. Scindhia said, “Ab meri ankhon ko shanti mili hai (my eyes are at peace now). Meanwhile, Ruchira was attacked, under the cry “Mussalman! Mussalman!” Reportedly, Advani was concerned that the kar sevaks might get hurt! When asked by Ruchira (to whom Advani had given his binoculars) why did Advani not stop the mayhem, he was quiet. Ruchira Gupta had accompanied Advani for the last four days. Advani was clear that he was not going to sweep the floor on the site. It was kar seva at all costs. He “swore by Ram that the mandir will be built here.”
We are not here concerned with the criminal conspiracy cases going on in Rae Bareilly and Lucknow. The law will take its course. But Commissions of Inquiry are not concerned with criminal liability but fact-finding. In this case, the purpose of the Commission was also to consider who is morally and politically culpable? Due to Commission reports, TT Krishnamachari and Kairon resigned in the 1950s. The idea behind a Commission, is partly to shame even the shameless and to ensure that what happens shall never happen again. In the case of the Babri Masjid, there was a comprehensive failure – by the BJP and Sangh Parivar, the State of UP which did not use the centre’s battalions and the Centre standing idly by Kalyan Singh was found in contempt of the Supreme Court. Narsimha Rao’s contempt was never decided by the Supreme Court when he was alive. Unfortunately, everyone – no less the media – feels that the only significance of the Liberhan Commission is whether it can be the basis of criminal liability.
There is an unfortunate controversy about whether Liberhan had treated Advani lightly. The former counsel to the Commission Mr. Anupam Gupta has gone public to suggest Liberhan took a ‘soft’ approach in this regard. This is unpleasant, a breach of responsibility and unfair. Liberhan denies all this. His distinguished record as a judge and Chief Justice of Madras and Andhra would not suggest susceptibility to bias. I argued Jaylalitha’s case before him for two years. He was impeccable. Like Justice Wadhwa’s report on the Staines matter he might have become ambivalent. But, we will have to wait.
The Liberhan Report must also depend on how we (the public) receive it and are prepared to receive it. There is a moral plane at which all governance works. Advani supported and provoked the kar seva, watched like Nero from the terrace and wrote an introduction to the BJP supporting this sacrilege as the correct moral and political thing to do. He does not want to own up to criminal conspiracy. But, he does own up to the sacrilege as a good thing – pointing to historical revenge as a reason. Basically, he seems to be saying, “I approve the destruction of the masjid. I saw its fall. I urged the kar seva and mobilized thousands. I watched from the terrace and joined the jubilation. I wanted it done. But I did not do it.” Today the official policy of the Sangh Parivar and BJP is that such destructions are good.
It is this official policy that makes the destruction of the Babri Masjid significant and divides the nation apart; and will continue to do so.
The Liberhan Report and the government’s Action Taken Report will help us review our conscience so that this kind of incident never happens again. But the Report should be released and not kept secret because the government’s ministers are slow at reading; and even slower at making up their mind. Our next step should be truth and reconciliation.
Friday, July 10, 2009
So near, yet so far
PILSARC Editorial
"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.
Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "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". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.
The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.
The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".
"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.
Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "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". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.
The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.
The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".
Wednesday, July 8, 2009
Leave Gays Alone
Leave Gays Alone
Rajeev Dhavan
Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.
The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.
In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.
Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.
Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.
The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.
Rajeev Dhavan
Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.
The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.
In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.
Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.
Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.
The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.
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