The Union of India vs. Gay, Lesbian, Bisexual and Transgendered Indians

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Written by Randeep Singh

The Supreme Court of India has upheld section 377 of the Penal Code of India, which characterized homosexual sex as “against the order of nature.” The decision reversed a 2009 ruling of the Delhi High Court which had ruled that the law violated constitutional rights to equality and personal liberty.

To clarify, Section 377 was never abolished by the Delhi High Court: it has remained the law in India, including New Delhi. The Delhi High Court decision was only binding in that Union Territory and no where else in India. The law can only be abolished by Parliament, not by any court, including the Supreme Court of India.

As for the problems with the decision.

First, the Supreme Court’s otherwise correct statement that only Parliament can amend the law, overlooks the historical importance of the Supreme Court of India in upholding the fundamental rights and freedoms of Indians despite the state. The Supreme Court has interpreted rights and freedoms expansively to include the right to education, the right to work with dignity and on behalf of socially disadvantaged including the poor, women and backward castes. It has historically been the Supreme Court of India which has persuaded Parliament to enact socially inclusive laws, not vice-versa.

Second, the Supreme Court held that “a miniscule fraction of the country’s population constitute lesbians, gays, bisexuals or trans-genders.” How did the court come to this determination? How many Indians are in the closet? Is not one person enough to challenge a law as unconstitutional? Moreover, the Supreme Court of India has historically upheld the rights of a vulnerable social group from the excesses of more dominant social groups, as it has done in the case of backward classes, the poor and women. Why has it failed to do so now?

Third, the Supreme Court holds that Section 377 criminalizes certain acts and not sexual orientation. Under this logic, Indian homosexuals are not breaking the law so long as they do not engage in sexual intercourse. There is no separation between the act of sex and one’s sexual orientation. Legally prohibited from having sex, India’s homosexuals will have to either think twice before getting intimate with their partners or they will have to go further underground. It is a clear case of discrimination based on sexual orientation.

I’m reminded of the Supreme Court’s decision in 2005 when it refused the appeal of Afzal Guru (who was convicted of the December 2001 attack on the Indian Houses of Parliament). The court ruled that the “collective conscience of the society will only be satisfied” if Afzal received the death sentence. In this case too, the Indian Supreme Court has sought to appease the collective “moral” conscience of society, represented in this case by conservative religious bodies, supported in the recent past by senior leaders of the BJP like the late B.P. Singhal who argued homosexuality was against the ethos of Indian culture.

Section 377 remains law, but change will come eventually. Just before posting this piece, I read that Sonia and Rahul Gandhi have criticized the ruling and that India’s Law Minister has stated the government has not abandoned efforts to make homosexuality legal. The law has changed for other socially disadvantaged groups in the past and the composition of the Supreme Court and Parliament is changing. Legal reasoning is dynamic and new precedents can be set. More than anything, the GLBT community in India, and its supporters locally, nationally and internationally will keep moving forward. The moment hasn’t come yet but the destination beckons.

Israeli mother Addresses European Parliament

Dr. Nurit Peled-Elhanan is the mother of Smadar Elhanan, 13 years old when killed by a suicide bomber in Jerusalem in September 1997. Below is Nurit’s speech made on International Women’s Day in Strasbourg earlier this month.

Thank you for inviting me to this today. It is always an honour and a pleasure to be here, among you (at the European Parliament).

However, I must admit I believe you should have invited a Palestinian woman at my stead, because the women who suffer most from violence in my county are the Palestinian women. And I would like to dedicate my speech to Miriam R’aban and her husband Kamal, from Bet Lahiya in the Gaza strip, whose five small children were killed by Israeli soldiers while picking strawberries at the family`s strawberry field. No one will ever stand trial for this murder.

When I asked the people who invited me here why didn’t they invite a Palestinian woman, the answer was that it would make the discussion too localized.

I don’t know what is non-localized violence. Racism and discrimination may be theoretical concepts and universal phenomena but their impact is always local, and real. Pain is local, humiliation, sexual abuse, torture and death, are all very local, and so are the scars.

It is true, unfortunately, that the local violence inflicted on Palestinian women by the government of Israel and the Israeli army, has expanded around the globe, In fact, state violence and army violence, individual and collective violence, are the lot of Muslim women today, not only in Palestine but wherever the enlightened western world is setting its big imperialistic foot. It is violence which is hardly ever addressed and which is halfheartedly condoned by most people in Europe and in the USA.

This is because the so-called free world is afraid of the Muslim womb.

Great France of “la liberte égalite et la fraternite” is scared of little girls with head scarves. Great Jewish Israel is afraid of the Muslim womb which its ministers call a demographic threat.

Almighty America and Great Britain are infecting their respective citizens with blind fear of the Muslims, who are depicted as vile, primitive and blood-thirsty, apart from their being non-democratic, chauvinistic and mass producers of future terrorists. This in spite of the fact that the people who are destroying the world today are not Muslim. One of them is a devout Christian, one is Anglican and one is a non-devout Jew.

I have never experienced the suffering Palestinian women undergo every day, every hour, I don’t know the kind of violence that turns a woman’s life into constant hell. This daily physical and mental torture of women who are deprived of their basic human rights and needs of privacy and dignity, women whose homes are broken into at any moment of day and night, who are ordered at a gun-point to strip naked in front of strangers and their own children, whose houses are demolished , who are deprived of their livelihood and of any normal family life. This is not part of my personal ordeal.

But I am a victim of violence against women insofar as violence against children is actually violence against mothers. Palestinian, Iraqi, Afghan women are my sisters because we are all at the grip of the same unscrupulous criminals who call themselves leaders of the free enlightened world and in the name of this freedom and enlightenment rob us of our children.

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Furthermore, Israeli, American, Italian and British mothers have been for the most part violently blinded and brainwashed to such a degree that they cannot realize their only sisters, their only allies in the world are the Muslim Palestinian, Iraqi or Afghani mothers, whose children are killed by our children or who blow themselves to pieces with our sons and daughters. They are all mind-infected by the same viruses engendered by politicians. And the viruses , though they may have various illustrious names–such as Democracy, Patriotism, God, Homeland–are all the same. They are all part of false and fake ideologies that are meant to enrich the rich and to empower the powerful.

We are all the victims of mental, psychological and cultural violence that turn us to one homogenic group of bereaved or potentially bereaved mothers. Western mothers who are taught to believe their uterus is a national asset just like they are taught to believe that the Muslim uterus is an international threat. They are educated not to cry out: `I gave him birth, I breast fed him, he is mine, and I will not let him be the one whose life is cheaper than oil, whose future is less worth than a piece of land.`

All of us are terrorized by mind-infecting education to believe all we can do is either pray for our sons to come back home or be proud of their dead bodies.

And all of us were brought up to bear all this silently, to contain our fear and frustration, to take Prozac for anxiety, but never hail Mama Courage in public. Never be real Jewish or Italian or Irish mothers.

I am a victim of state violence. My natural and civil rights as a mother have been violated and are violated because I have to fear the day my son would reach his 18th birthday and be taken away from me to be the game tool of criminals such as Sharon, Bush, Blair and their clan of blood-thirsty, oil-thirsty, land thirsty generals.

Living in the world I live in, in the state I live in, in the regime I live in, I don’t dare to offer Muslim women any ideas how to change their lives. I don’t want them to take off their scarves, or educate their children differently, and I will not urge them to constitute Democracies in the image of Western democracies that despise them and their kind. I just want to ask them humbly to be my sisters, to express my admiration for their perseverance and for their courage to carry on, to have children and to maintain a dignified family life in spite of the impossible conditions my world in putting them in. I want to tell them we are all bonded by the same pain, we all the victims of the same sort of violence even though they suffer much more, for they are the ones who are mistreated by my government and its army, sponsored by my taxes.

Islam in itself, like Judaism in itself and Christianity in itself, is not a threat to me or to anyone. American imperialism is, European indifference and co-operation is and Israeli racism and its cruel regime of occupation is. It is racism, educational propaganda and inculcated xenophobia that convince Israeli soldiers to order Palestinian women at gun-point, to strip in front of their children for security reasons, it is the deepest disrespect for the other that allow American soldiers to rape Iraqi women, that give license to Israeli jailers to keep young women in inhuman conditions, without necessary hygienic aids, without electricity in the winter, without clean water or clean mattresses and to separate them from their breast-fed babies and toddlers. To bar their way to hospitals, to block their way to education, to confiscate their lands, to uproot their trees and prevent them from cultivating their fields.

I cannot completely understand Palestinian women or their suffering. I don’t know how I would have survived such humiliation, such disrespect from the whole world. All I know is that the voice of mothers has been suffocated for too long in this war-stricken planet. Mothers` cry is not heard because mothers are not invited to international forums such as this one. This I know and it is very little. But it is enough for me to remember these women are my sisters, and that they deserve that I should cry for them, and fight for them. And when they lose their children in strawberry fields or on filthy roads by the checkpoints, when their children are shot on their way to school by Israeli children who were educated to believe that love and compassion are race and religion dependent, the only thing I can do is stand by them and their betrayed babies, and ask what Anna Akhmatova–another mother who lived in a regime of violence against women and children–asked:

Why does that streak o blood, rip the petal of your cheek?

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Published in “Jews for Justice for Palestinians”: http://jfjfp.com/?p=7720

Thriving on the Culture of Exclusion: Punjab Auqaf

Durbar Baba Bulleh Shah

This is the resting place of a great Malamti Sufi Poet Baba Bulleh Shah (1680 to 1790) in Qasur, Pakistan. Every year in August, people come here from all over Punjab and Pakistan to celebrate his work and person. Bulleh Shah is part of the proud tradition of South Asia that nurtures equality and celebrates diversity; that takes a clear stand against discrimination on the basis of religion, sexuality, race and gender.

Bullah in his verses taught us that people who follow different religions or are born into them, are equal; that organized religions are discriminatory idealogies; and through his life, he showed us that the highest form of spirituality may sometimes reveal itself in gay love; that whatever our race, the basic fact that must rule is that we are all human beings; and though he did not preach feminism, i have yet to read a verse written by him that smacks of gender discrimination. Then why, in the name of Bullah, women are not allowed to set foot in his shrine?

Durbar Baba Bulleh Shah

The red line on the right highlights the notice that says that women are not allowed to go beyond that point; that means we can not go through the door, can not touch the stone that surrounds Bullah or pick up a couple of flowers from the top; and, we can not receive a rose and jasmine garland from the caretaker inside.

The two lines on the left, frame a part of Bullah’s verse now etched in stone but still not heeded. He says, and like most of Bullah’s verses, this one is also known to people throughout Punjab by heart, ‘Jis tun lugeya ishq kamal, naachay bay sur tay bay taal’. It means a body that has been touched by devotional love, dances without rythm and without beat or out of rythm and out of beat.

The line on the floor shows how far i can go; and, the person standing smack in the middle of the door is there to guard against the possibility that i may try to get in. His fears are not unfounded; this is what i did when i came in the courtyard ten minutes back because I knew that my only chance was to take them by surprise. And so, by the time they stopped me and then pushed me out of the shrine, i had done it. I had gone in, touched the stone, and took a few flowers lying on top of it.

It is important for me to tell you why i did that. I did that to tell myself that Bulleh Shah is as much ‘mine’ as he is anyone else’s in this world, and that i am not going to let Mehkma Auqaaf define Bulleh Shah in terms where the culture of lokai people is again taken over by religious bigots. And the reason i knew that ‘surprise’ will work, is because i faced the same situation at Jeevay Madhulal Hussain’s in Lahore time and again; caretakers at his Durbar would become alert upon seeing me enter the courtyard even when i had only crashed the prohibited door on my first visit.

At the place of Baba Sohna Bulleh Shah, I did not ask for the garland when i went in because the caretaker was busy pushing me out but that is okay because my friend Amarjit Chandan who was welcome inside with Afzal Sahir and Abdullah Malik, was kind enough to give me his garland. Here is this ‘privileged’ group of people; or should i say here are some of the ‘privileged’ members of my group; or simply, a group of ‘privileged’ people flanked by two additional distinctive individuals.

Durbar Baba Bulleh Shah

The fourth person from this group, Akram Varraich, though also equally privileged can not be seen in this photo because he was taking it.

Of course, i am lucky to have so many distinctive friends but i want their privileges to increase in quality as i try to expand mine because the advantages granted by the Department of Religious affairs in Pakistan may not be worth enjoying as they exclude over half the population of the Punjab, and Pakistan. And if ‘thriving’ on the ‘culture of exclusion’ seems like an exaggeration to you, consider that segregation is or was sanctioned in so many dominant cultures, and humans in power have always created their societies by excluding ‘other’ peoples and beings.

For now, we know that the ‘Religious Affairs and Auqaf’ of Punjab Government controls over 37 shrines in the province under the Punjab Waqf Properties Ordinance of 1979. Meanwhile, here is the email address of Lieutenant General (Retired) Khalid Maqbool, Governor of Punjab since 2001: governor.sectt@punjab.gov.pk

Chief Minister Punjab, Dost Muhammad Khosa is here: www.punjab.gov.pk

Photos by Akram Varraich first published at http://www.apna.org/

Sufi Movement
Muslim Culture
Punjabi Culture