Teachers’ Intervention in the Supreme Court on Section 377

The Delhi High Court judgement reading down Section 377 to decriminalize consensual sex between adults was appealed against in the Supreme Court by several religious groups. However during the appeal, the Government of India withdrew its objections to the High Court judgement. In addition, there were some parties that intervened to support the judgement – parents, medical practitioners and teachers, among others. The Supreme Court judgement is awaited, but meanwhile, I am posting below the  position of the 16 teachers who intervened in this matter. This statement does not form part of court documents.

As teachers we essentially wanted to make the argument that Section 377 vitiates for everybody (and not just for gay people) the general atmosphere of free expression, learning, enquiry, and dignity that an academic environment should ensure.  That we oppose Sec 377 because its existence on the statute books legitimizes an atmosphere that runs counter to the spirit of openness and acceptance of difference that should mark modern academic spaces.  Its existence is not only an affront to those who are non-heterosexual, but it is an affront to each and every person in the academy who believes that every teacher and student has dignity that should be respected, and that learning is a continuous and life-long process, in which fixed ways of thinking are continuously challenged and reshaped by winds of change.

 The Applicants render their full support in favour of the impugned Judgment passed by the Hon’ble High Court of Delhi and firmly believe that criminalizing citizens on grounds of their sexual preferences violates Fundamental Rights, including citizens right to equality, freedom and personal liberty as well as the right not be discriminated on irrelevant and irrational grounds.

The applicants submit that just as ‘religious leaders’ are entitled to their opinions, other sections of society including the Applicants are entitled to maintain their own opinions in a democratic framework. The Applicants submit that the views of ‘religious leaders’ cannot be taken as being the final word on the issue which would bind all sections of society. Societies have adapted themselves to such social change over time, the world over.

The Applicants submit that in the course of their professional lives, the Applicants have interacted with hundreds of LGBT persons inIndia. The academic community has maintained silence hitherto, regarding the enormous mental distress caused to Lesbian Gay Bisexual and Transgender individuals. The Applicants wish to draw attention to the pain experienced by the LGBT community within academic circles due to being subject to constant ridicule and harassment which was further perpetuated by the existence of s. 377 of the IPC.

The Applicants submit that the impugned Judgment therefore, provides much needed clarity to an archaic law and goes a long way in protecting a substantial section of civil society from the harassment, humiliation and prejudices that were founded on as entirely misconceived understanding of sexual preference and orientation.

The Applicants submit that the impugned Judgment therefore, advances the underlying principle of a Democracy viz., freedom and the right to choose which is the foundation of any civilised society and an intrinsic part of the Constitutional Freedoms conferred upon persons inIndiaas the Constitution prohibits discrimination on other grounds such as religion, caste and community.

The applicants respectfully submit that sexual preference and identification is only one part of people’s identities, and that modern democracies have a greater duty to respect diversity regardless of whether consensus exists in society on the desirability of each such practice. As long as a practice respects the person and choices of others, the mere lack of consensus amongst everyone cannot be the basis for condemning a practice and/or belief. For instance, there need not be consensus in society on either meat-eating or vegetarianism as being more desirable, provided both groups are free to follow their dietary preference.

The Applicants strongly contest the arguments advanced by the Petitioner, inter alia, based on religion and its purported prohibition of homosexuality as being without foundation and contrary to very freedoms conferred by the Constitution including the right to freedom of choice and expression and are completely out of character with present day social understanding.

The Applicants submit that any steps to dilute the impact of the impugned Judgment would amount to a retrograde step and deny the significant LGBT population the right to intimacy, which is central to family life, community, individual well being and the development of the human personality. It is in this regard that the decriminalisation of consensual sexual intimacy between adults is a reasonable, rational and a welcome step and deserves to be protected.

The Applicants further submit that homosexuals are not defying religion or acting immorally in expressing their sexual preferences. Religious identity is as important for many homosexuals as for heterosexuals. Homosexual people include practising Hindus, Muslims, Sikhs and Christians, and they have fully supported the Delhi High Court decision. The argument of threat to public morality in the absence of any harm caused by consensual adult same sex is therefore entirely misconceived and untenable.

To summarize, the Applicants fully support Delhi HC and are of the opinion that  Section 377  should not apply to consensual adult relationships.

That criminalizing profound human experiences not only takes away the right to equality, but erects segregation in the society on irrational principals defeating the essence of an equal society.

That taking away the most basic human right can only be considered a crime against humanity. Criminalization on the basis of sexual preferences is as grave as differentiation on the basis of race, caste and ethnic origin, suggesting a surrogate form of apartheid.

That the existence of S. 377, I.P.C. on the statute books vitiates, and is antithetical to the general atmosphere of free expression, learning, enquiry, and dignity that an democratic environment should ensure.

That the Applicants oppose Sec 377 in as much as its existence on the statute books legitimizes an atmosphere that is in complete contradiction to the spirit of openness and acceptance of difference that should mark modern academic spaces. Its existence is not only an affront to those who are non-heterosexual, but it is an affront to each and every person in the academy who believes that every teacher and student has dignity that should be respected, and that learning is a continuous and life-long process, in which fixed ways of thinking are continuously challenged and reshaped by winds of change.

It is for the above mentioned reasons that the Applicants  welcome  the judgment of the Hon’ble High Court of Delhi in WP(C) 7455/2001, titled Naz Foundation v. Government of the National Capital Territory of Delhi & Ors., which declared section 377 unconstitutional insofar as it applied to consensual same-sex sexual acts between adults in private. The applicants are of the firm opinion that a major source of the stigma and discrimination faced by LGBT persons in India had been removed through the judgement of the Hon’ble High Court of Delhi at New Delhi.

The Applicants submit that the Hon’ble High Court of Delhi at New Delhi had correctly appraised the constitutionality of the said provision based both on the current history of use of the law as well as the latest medical and scientific opinion and ought to be approved by this Hon’ble Court and the instant Special Leave Petition ought to be rejected as being entirely misconceived and untenable. The Applicants have, since the impugned judgment was rendered, being active in supporting the same at various social events and therefore, submit that they ought to be given an opportunity to assist thisHon’ble Courtin the determination of this significant issue.

Annexed herewith and marked as Annexure A-1 is a copy of a Statement dated 19th July 2009 released by University teachers, Academics, Researchers, inter alia, from all over the Country, to which all of the Applicants were a party supporting the impugned Judgment.

That in the circumstances, the applicants are an affected party and are both necessary and proper parties to this petition.

That this Application is bona fide and in the interest of justice and it is therefore submitted the Applicants should be permitted to intervene in the present Special Leave Petition and assist this Hon’ble Courton the questions of law raised.

Nivedita Menon,
Jawaharlal Nehru University, Delhi

Shohini Ghosh,
Jamia Millia Islamia, Central University, New Delhi

Shilpa Phadke
Tata Institute of Social Sciences, Mumbai

Aditya Nigam
Centre for the Study of Developing Studies, Delhi

Ranjani Mazumdar
Jawaharlal Nehru University, Delhi

Kamal Mitra Chenoy,
Jawaharlal Nehru University, Delhi

Anuradha M. Chenoy
Jawaharlal Nehru University, Delhi

Ankita Pandey
Indraprastha College, Delhi University

Partha Pratim Shil
Hindu College, Delhi University

K.P.Jayasankar
Tata Institute of Social Sciences, Mumbai

Satish Deshpande
University of Delhi,

Janaki Srinivasan
Panjab University

Shoba Venkatesh Ghosh,
University of Mumbai

Mary. E John
Centre for Women’s Development Studies, New Delhi

Anjali Monteiro
Tata Institute of Social Sciences, Mumbai

Janaki Abraham,
University of Delhi

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