Saturday, July 31, 2004

Jonathan Mann Memorial Lecture Bangkok July 14

Dennis Altman LaTrobe University/President AIDS Society of Asia and the

Rights Matter: structural interventions and vulnerable communities

My original invitation to deliver this address specifically spoke of interventions for ‘MSM, idus and sex workers’, leading one friend, a veteran activist, to dub this the perverts’ plenary. The very framing of this topic shows both the strengths and the limits of the current international language of HIV prevention. It is highly important both to emphasise prevention and to recognise that some groups, because of particular behaviours, are particularly vulnerable to HIV infection. But
this assertion makes two problematic assumptions. One is that we assume people can be neatly divided by behaviour into discrete and identifiable groups. The second is that everyone has the knowledge and the resources to make free choices, whether this be the choice for sexual abstinence and refusal of drugs, or alternatively the choice to always use condoms or clean needles.

Interestingly both conservatives and liberals place great emphasis on choice: the advice to “just say no” is equivalent in some ways to the advice to always follow safer sex and injecting practices. Yet this ignores the harsh reality that before we have choice, or what social scientists like to term ‘agency’, we need both knowledge and the means to act on that knowledge. Estimates from most parts of the poor world suggest a continuing ignorance about HIV and the basic measures to
control it: one survey in Orissa, in eastern India, suggested 60% of women have never heard of AIDS.

If there is one comment which sums up the legacy of Jonathan Mann it is his assertion that: “We must protect human rights because we want to effectively control AIDS as well as protecting rights for their own sake.” As the founding director of the Global Program on AIDS, Mann led us to understanding the link between health and human rights. His work lives on through the journal, Health & Human Rights, through the Boisrouvray Centre at Harvard University and through the words of leaders such as South Africa’s Nelson Mandela and Burma’s Aung San Suu Kyi. Jonathan was willing to offend when doing so would confront people
with the consequences of their actions, or, equally important, their inactions. His is a model I shall follow.

Given the gravity of the epidemic, we need go beyond a legalistic emphasis on covenants and policies to a genuine understanding of the moral and pragmatic priority of human rights. Our shared work grows out of respect for human life and dignity, which is both a religious and a secular tradition. It is closely related to the basic concept of human security, and the worst excesses of the past decades—eg
Rwanda/Cambodia/Bosnia—remind us that without respect for human life
there can be no security. In much of sub-Saharan Africa today societies face the literal possibility of total collapse and disintegration due to the ravages of HIV. If unchecked, HIV will undermine societies as surely as will the bombs of terrorists. Yet the resources provided to check HIV/AIDS are miniscule in comparison to those being put into fighting terror.

Who are vulnerable?

Let us be careful, as we focus on youth and women, today’s theme, that legitimate outrage at the treatment of many women does not mean we forget that poverty, racism, war and oppression also limit choices for men. Indeed, the very term ‘men’ is itself problematic, as is clear if we think about the diverse ways in which gender is
expressed. The rich transgender heritage of groups such as kathoey, bakla, hijra, to take three examples from this part of the world, remind us there are many ways of acting out ‘maleness’. Men who deviate from the conventional assumptions of masculinity are often likely to be particularly vulnerable to HIV.

There is a parallel danger in assuming all women are equally vulnerable. Such a view can too easily paint all women as inherently powerless, depicting them as either Madonnas or whores. This can further stigmatise the most vulnerable, and increase their vulnerability. In general the more socially and economically marginalised a population the greater its vulnerability to infection, and there are many groups who might also have been discussed in today’s session: refugees, migrant workers, prisoners and indigenous and tribal populations.

Access to prevention is as significant as access to treatments, and an equally political demand, for it is about our right as healthy citizens rather than as unhealthy dependents. We need not choose between allocating resources to prevention rather than treatment, for strengthening one can only strengthen the other. This argument is developed in a paper that the AIDS Society of Asia and the Pacific will release later today. Unlike failure to access treatment, it is hard to
blame the rich world in general, or pharmaceutical companies in particular, for failures in prevention. Even poor countries can afford to support good prevention efforts, as Uganda and Cambodia remind us.

The greatest tragedy of HIV/AIDS is that we know how to stop its spread, and yet in most parts of the world we are failing to do so. The literature tends to emphasise immediate problems—lack of condoms or clean needles, safe sex fatigue, unwillingness to interfere with the immediate gratification of sex or drugs. There is less emphasis on the political barriers that are accelerating the epidemic—the deliberate neglect by governments, the unwillingness to speak openly of HIV and its
risks, the hypocrisy with which simple measures of prevention are forestalled in the name of culture, religion and tradition.

What do we mean by ‘structural interventions’?

Put simply, these involve policies that recognise vulnerability to HIV goes far beyond individual choices and behaviours, acknowledging that such behaviours are products of larger environmental factors. Structural interventions can be as ambitious as reducing economic inequalities to give people better housing and clean water, but they can also describe specific programs such as needle exchanges or the provision of condoms to sex workers and prisoners. In most cases they will involve governments, either through their own policies or at least by not blocking programs undertaken by NGOs and community groups.

Imagine a child, living on the streets in the slums of Rio or Dacca or Lagos or Kiev, forced to survive through prostitution and petty crime, often turning to drugs to numb the pain, the fear, the hunger and the cold of everyday survival. Telling such a child to use condoms or not to share needles to ward off an illness that may strike many years hence is meaningless. Imagine a young woman, forced by family and community pressure, to marry at thirteen and have sexual relations with a man
older than her father, whom she has never properly met, and the possibility of her insisting on his using a condom—if, indeed, she even knows the dangers of unprotected intercourse. Imagine a young man, forced into an army or militia, having to flee his family and home to survive, perhaps in prison or a make shift camp, introduced to drugs as a means of escape, and then imagine the chances that he will have the means or the incentive to reject the short term euphoria of a hit
because the needle may not be clean.

Yet for millions of people in the world today struggle for immediate survival is the reality of their everyday life. Paul Farmer has written: “For many…choices both large and small are limited by racism, sexism, political violence and grinding poverty …Both HIV transmission and human rights abuses are social processes and are embedded, most often, in the inegalitarian social structures I have called structural violence.”

Unfortunately there are more examples of political interference that have hampered sensible HIV prevention programs than have supported them. Too many governments have applied sanctions, punishment and repression, ignoring the reality that humans will seek both pleasure and survival in ways that often confront the traditional norms to which social, religious and political leaders pay lip service.

Identity versus Behaviour

There is a double vulnerability involved in HIV: both economic and social factors are crucial. Someone who sells sexual services in order to survive is likely to be more vulnerable to HIV, and this is a result both of the specific behaviour and of the poverty and despair that underlies that behaviour.

There is a problem in talking of ‘vulnerable populations’, as if they are discrete and their boundaries are known: most people who engage in the behaviours I have been asked to address do not necessarily identify themselves in these terms. Sometimes we need name groups—and empower them. At other times we need understand that most people do not necessarily accept the terms of the HIV world and that they may be reached through other approaches—eg. through outreach to women or to
street kids or to unemployed youth.

The fear of stigmatising homosexual men by linking them too closely to HIV, a concern for some gay men in the early stages of the epidemic, has been replaced by a frightening silence, whereby most national and international organizations working on HIV/AIDS are unwilling to even acknowledge homosexuality. In Japan there is much talk of ‘young people’ at risk of HIV, but little acknowledgement that many of these are young homosexual men. To always speak of HIV transmission through heterosexual intercourse without recognising that many men will engage in sex with each other is to send the very dangerous message that homosexual
intercourse is without risk. The Hong Kong Advisory Council on AIDS has recognised the need to address silence about homosexuality in schools, health care settings and within government.

In the west, gay communities pioneered responses to HIV, particularly the development of safer sex programs that are still relevant to most societies and populations today. Equally, as one Australian drug worker pointed out: “It was us, individually and collectively through our organizations, who developed the educational messages, trained the peer educators, taught each other safe injecting techniques, and passed on the equipment and information from person to person.”

This does not mean that we can speak of all vulnerable groups as if they resembled gay men or users in rich western cities. There is a political and conceptual problem in lumping together very different groups into category of “vulnerable populations”. Where people can organise around particular identities this can be the most powerful force for prevention and action against stigma. The history of AIDS shows this for gay men and haemophiliacs in western countries, for sex workers in groups across the developing world, for people living with or close to those with HIV, in major social movements like TASO in Uganda or South Africa’s TAC.

Some of the greatest bravery in this epidemic has come from people who have confronted the double stigma of their identity and their seropositivity, creating the community organisations without which many of you would not be at this Conference. Today their legacy is carried on in groups like GNP and the ICW, in organizations of sex workers, homosexual and transgender men and drug users, who through asserting their basic human dignity and right to expression are also creating models for HIV work. As we were organising the last ICAAP in Melbourne
in 2001—a conference held in the shadow of 9/11—we were inspired by the
bravery of young homosexual men in Lucknow, India, who were harassed and
imprisoned by local authorities as they sought to provide basic information and resources for safe sex to homosexual men in Uttar Pradesh. Also in India, is the extraordinary sex worker cooperative known as the Durbar Mahila Samanwaya Committee, which seeks to empower sex workers to protect themselves and their dependents from HIV infection. There are examples of great bravery from people who have set up needle exchanges and done outreach work for drug users on the streets of cities ranging from New York to Beijing, risking police and government persecution and intimidation.

Just prior to the International AIDS Conference there was a regional ministerial meeting in Bangkok devoted to AIDS, at which there was only very token participation by representatives of affected and infected communities, and that only after considerable pressure on the organisers. The lessons from countries as far apart as Brazil and Uganda, that policy work demands the full participation of infected and affected communities, seems to have been forgotten by our governments.

What are good structural interventions?

These include legal and social regulations that take as their starting point improving the quality of life, health and citizenship for all. As in other areas of HIV/AIDS, Brazil stands out, with its combination of governmental and non-governmental programs aimed at linking treatment and prevention, its willingness to promote condoms and clean needles, and the launching of a government sponsored plan called Brazil Without Homophobia. Earlier Brazil proposed a resolution at the United Nations Commission on Human Rights —unfortunately postponed—against
discrimination based on sexuality.

There is growing tension between evidence based public health and denial of that evidence, fuelled by a bizarre combination of religious and ideological pressures, which often see the United States and some of its bitterest opponents unite in their support of repressive legislation. This is clearest in the area of drug use. Countries such as Switzerland, the Netherlands and Australia contained idu spread of HIV through the early introduction of needle exchange and harm reduction. Yet this
lesson is still disputed by the United States and most Asian governments, with the result that idu use in parts of Asia and Eastern Europe is fuelling the epidemic in alarming proportions. Even here in Thailand, a country many of us have long admired for its responses to HIV, the recent crackdown on drugs has greatly increased vulnerability of users to HIV. I congratulate the Prime Minister for his opening remarks, which came close to acknowledging this. Thailand might look to
Portugal, which has moved to remove users from the criminal justice system, itself one of the greatest factors for harm, and has registered a corresponding decline in needle-related HIV infections.

In most countries there are ongoing restrictions on the discussion and promotion of condoms, on sex education in schools, on recognition that homosexuality and sex for money are realties in every complex human society. Often the most significant structural interventions possible are those that remove barriers to honest discussion of human behaviour. If the choice is between maintaining the demands of ancient religious superstitions—and with them the power of male clergy—and proving the
information and the resources to protect young women and men from infection with a potentially lethal and painful virus, can anyone who seriously believes in a just God, or a system of ethical standards, seriously doubt the answer?

Good interventions support genuine choice and protect people in the choices they make. In the case of sex work this means action against the enforced recruitment of women and children into prostitution, often with the involvement of government, business and military officials. Sex workers need genuine alternatives to prostitution as a means of livelihood, while simultaneously protecting those who survive through working in the sex industry. Extending workers rights, as is the case in
some European countries and has been proposed recently by a Thai Senate
committee, might be the most significant structural intervention in some cases. So too are 100% condom programs, but only when they involve sex workers themselves, as appears to have been the case in several projects in the Dominican Republic.

Good structural interventions will acknowledge the presence and human dignity of people who live outside conventional expectations. Often this involves the provision of safe spaces for people whose behaviours put them at risk from both state and unofficial violence. Such policies would include the provision of safe spaces for injectors, as exist in Switzerland; safe street areas for prostitution; or community drop-in centres for those who identify as homosexual, as provided by the Humsafar Trust, with city and state support, in Mumbai.

Because effective interventions empower and remove stigma, effective interventions uphold human rights. Further, they increase the likelihood that people will do what they can to protect themselves. An empowered sex worker or drug user is more likely to find alternatives than one who is criminalized and stigmatised.

We need think imaginatively and act boldly. In countries like the United States, Russia, where prisons are incubators for HIV, reducing the number of people imprisoned would be a very effective way to reduce the spread of HIV. In many parts of the world only a radical shift by organised religion, and a willingness to accept that safeguarding life is more important than preserving antiquated moral precepts, will bring the resources and the messages about safer sex to those who are most vulnerable. Moves to remove the criminal sanctions against and persecution of homosexuals and sex workers are crucial to achieving the goals of slowing HIV infection. In most of Britain’s former colonies in South and Southeast Asia, in Africa and the Caribbean, homosexuality is criminalized because of British laws, which have been retained on the books by governments who boast of their opposition to colonialism.

Theoretical discussion IS relevant to finding empirical solutions: how we think about and frame the questions will help determine the answers. Not nearly enough attention is paid at these Conferences to analysing the barriers that religion, politics and human hypocrisy erect against effective programs of HIV prevention. In the end the great issues that demand research and action are political questions, in that they involve issues of power, control and ideology.

As the epidemic grows we have many reasons to be angry, particularly at the hypocrisies of most governments and most religious leaders. Indeed, we are so unwilling to confront these issues that we fall back on platitudes about “communities of faith”, ignoring the ways in which fundamentalists of all faiths perpetuate the gender and sexual inequalities that fuel the epidemic. We constantly hear rhetoric about leadership, rather than analysing what it is we want leaders to do. But anger that is not supported by analysis, and that does not lead to action, is wasted and self-indulgent. As the world becomes more dangerous and uncertain, and political attention is increasingly focused on war and terror, how we respond to the challenge of halting the spread of HIV is a central test of human decency and human solidarity.

Sunday, July 25, 2004

Why Nepal Police is assaulting/torturing Sexual
by sunil pant

I am writing this mail to inform you about the brutal assault and rape against 4 Metis (cross dressing males) by Nepal Police in Kathmandu, Nepal, on the early morning of 25th July 2004.

Jaya Bahadur Lama (Hetauda City), 28, Ramesh Lama (Hetauda City), 20, Binod (Butwal city), 22 and Madan (Melamchi), 17 living in Kathmandu, all of them are surviving by selling sex. They were walking at 3.30 am in the evening near Jamal, central Kathmandu. After a while a guy harassed the Metis after they refuse to go with him for sex. So the guy started abusing them verbally and Metis also started shouting at him. At that moment, night patrolling police van (blue coloured vehicle, No: 2348) arrived. The police started forcing the Metins to get into the police van after the police recognised them as Metis. There were 5 policemen under the influence of alcohol and 3 street guys already in the police van.

After that the police van took all of them at sloppy road in Sinamangal. All the Metis were beaten inside the van, their wigs were thrown away, the Meti?s bra were also tarred and their money (2400 Rs) were taken. The police van stopped at the road and one of the police slapped Jaya Bahadur Lama and force him to perform oral sex middle of the street. When Jaya Bahadur Lama refused saying there were people around then the police took him to the corner and forced Jaya Bahadur Lama to perform oral sex initially and he was raped anally without condom. When Jaya Bahadur Lama requested the policeman to use condom, the policeman kicked him instead of using condom. Then they were taken to the Gausala Police station near Pashupati Temple area. When the van stopped inside the police station compound, the three street guys were taken inside but all the Metis were kept by policemen in side the van. Then Ramesh Lama was taken into the backyard of the building inside the police station compound and beaten and forced to perform oral sex. Again the police refused to use condom despite Ramesh?s request. Then Jaya Bahadur and Ramesh Lama escaped from the police station but Binod and Madan were kept inside the van. Binod and madan then bitten up and raped by rest of the policemen from the Gausala Police station (about 12 policemen) and released after 3 hours.

Then all the Metis approached Blue Diamond Society for complains. Blue Diamond Society tried to call Women Cell within the Nepal police for support and also called Police head quarter but so far we havent been successful to file the complain. Blue Diamond Society is very much concerned of such regular assault and rape (without condom) against Metis and other sexual minorities in Nepal and condemns the degrading action from the Police Personals who supposed to protect the citizens.

Blue Diamond Society calls for your support and solidarity to protect the human rights of Metis and other sexual minorities and an immediate and thorough investigation into the assaults and rape. Police Officers who are supposed to protect the citizens of the country must not be able to commit such acts with impunity from the law they are here to uphold.

Sunil B Pant, 25th July 2004, Kathmandu, Nepal


The Blue Diamond Society's Official Website

Blue Diamond Society (BDS), Nepal's only organization for sexual minorities, is transforming the lives of of sexual minorities including Meta, Dohori, Ta, Gay, Bisexual, lesbian, Hijra, Singaru, Fulumulu, Kothi, Kotha, Strian, Maugia, Panthi and manymore in Nepal. The Blue Diamond Society (BDS) was founded in 2001 in an effort to address the needs of sexual minorities. BDS is a community-based sexual health, HIV/AIDS, advocacy services for local networks of sexual minorities in Nepal. It provides a drop-in center (DIC), outreach work and clinical referrals for its constituents.


the International Gay and Lesbian Human Rights Commission (IGLHRC)

The mission of the International Gay and Lesbian Human Rights Commission (IGLHRC) is to secure the full enjoyment of the human rights of all people and communities subject to discrimination or abuse on the basis of sexual orientation or expression, gender identity or expression, and/or HIV status. A US-based non-profit, non-governmental organization (NGO), IGLHRC effects this mission through advocacy, documentation, coalition building, public education, and technical assistance.


About Amnesty International

Amnesty International (AI) is a worldwide movement of people who campaign for internationally recognized human rights.

AI's vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights standards.

In pursuit of this vision, AI's mission is to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights.

AI is independent of any government, political ideology, economic interest or religion. It does not support or oppose any government or political system, nor does it support or oppose the views of the victims whose rights it seeks to protect. It is concerned solely with the impartial protection of human rights.

Tuesday, July 20, 2004

Ode to My Dad by Megan Carlson by Megan Carlson

tell me, what's the point of having ears
if you refuse to listen?
it's like a nuclear explosion
when you witness two dudes kissin'
but you don't even try to understand
instead, you just keep on dissin'
the ability to see through the fog of your
is the one thing that you're missin'
tell me, why can't you just open your mind?
are you afraid you'd find
that it's fallen out?
or are you afraid to find
that what you've been led to believe
is not what it's all about?
"black and white"
"right and wrong"
"women and men"
"heaven and hell"
well i'm here to tell
that what i say
is true
there are a million shades of gray
out there
and every one of them is meaningful
but you don't even care
no, you're never wrong
as far as you're concerned
but you know, it's okay to be wrong sometimes
'cause that's how you learn
but no, you're still stuck
in the 1950's
that must be why
you can't remember the 60's
remember the change
remember the community
remember how they'd jump
at the opportunity
to grow
to evolve
to progress
i must confess
that my life sometimes too
is a mess
but at least i can admit it
which is a hell of a lot more
than i can say for you
i hope someday you can let go
of this narrow-minded view,
this so-called reality
where it's all right to judge me
judge my life
just 'cause i want a wife
instead of a man
as for me,
i will NEVER understand
why it's okay to judge someone
as long as God gets all the credit
tell me, is that really what God said?
or is it the God you edit?
if you expect me to change,
well, you can just forget it
'cause this is how God made me
and i KNOW that He meant it
when He said "whosoever..."
when He said "do unto others..."
i'm pretty sure that includes
all my sisters and my brothers
i'm pretty sure He never intended
for the literal interpretations to start
'cause you know, not everyone who hears that message
has a good heart
remember Matthew Shepard?
and all the similar cases?
do you remember their names?
do you remember their faces?
do you remember how they suffered?
well, their blood is on your hands too
'cause everytime you say,
"well, this is what God expects us to do"
someone takes it too far
and we lose another one
another son
another daughter
another mother
another father
and i'm tired
i'm tired of your ignorance
i'm tired of your ignorance and your lies
ruining me and my friends lives
there's a vail over your eyes in the form of a book
i dare you to someday put it down and take a look
take a good look at the world
and how we're in this state
where people openly and unfairly
and use the bible to justify their own hate
please tell me that it's not too late
to accept the beauty
of humanity
and accept the fact
that love
is not
a sin.

I was showered with abuses


It was Wednesday, July 14. The nightmare began around 10:30 in the morning when a group of nine eunuchs descended on our second-floor flat in Jodhpur Park ostensibly to “bless” my brother’s two-month-old son.

True, we had anticipated a visit from them (as happens all the time) since Pokey, my nephew, was born. But now I know, to my cost, what such visits mean for a family, who often suffer mutely at the hands of these extortionists.

Aware that they could get nasty at times, I was on my toes from the moment they perched themselves outside our flat, with the locked collapsible gate standing between them and us. I wanted to deal with them from the start, but my mother would not let me, knowing full well that I have a short temper.

In the beginning, they seemed perfectly okay, blessing my sister-in-law who approached them with my mother. The mask soon dropped when they demanded Rs 11,000 from my mother. It is common knowledge that eunuchs come calling when a child is born in a family. They go away when you hand them some cash. But Rs 11, 000! We would have to pay the money, they yelled. “Most couples now have only one child, so we won’t be able to visit you again, as we did in the past,” they told us.

They even promised to give a receipt for the amount, so other groups of eunuchs wouldn’t bother us. As my mother and sister-in-law bargained, they reduced it to Rs 10,000. I had heard that some families living in Jodhpur Park had forked out Rs 13,000 to 18,000 to eunuchs. I always wondered why they paid up. I soon found out. I decided to step in as my mother and sister-in-law were soft targets. Standing behind the safety of the locked gate, I started haggling, bringing the amount down to Rs 6,000. They agreed, seemingly without rancour.

Then, our cook made possibly the biggest blunder of her life. Before my mother could intervene, she unlocked the gate to hand over some rice and flour they had asked for along with the money. Soon, all hell broke loose. Stepping into our apartment, the eunuchs (some of them carrying Nokia phones) started swearing at me. Some even threatened to “rape” me.

Before I could protest, the biggest of them, who appeared to be the leader, seized me by the collar and molested me. I felt pure hatred and revulsion. As if this was not enough, they lifted their saris and danced suggestively, clapping wildly.

It went on for what seemed like eternity. My father and brother were out at the time. They hurled the choicest swear words at us. Though the commotion was audible enough, none of our neighbours came to our rescue. When I tried to call the police, they snatched the phone from me. Some of them even tried to enter our bedrooms. I screamed. My mother, a diabetic, was panicking by now. So was my sister-in-law. There was a moment when we even feared for our lives. We had no option but to pay. They were paid Rs 10,000 in cash. No sooner had they stepped out than I realised that they had not given us the receipt they promised.

I opened the gate and called after them, demanding the receipt. The leader — that hefty, menacing eunuch — stopped. He held up that paper, tore it and ate up the bits. “You have been very troublesome. So we will not give it to you. Now you have to pay other groups of hijras as well,” he told us, smirking. Something snapped inside me. I could not control myself any more. I rushed towards the leader. Holding the eunuch by the edge of the sari, I looked the leader in the eye and clamoured for the receipt. I was showered with abuses. But finally, he wrote the amount, signed the paper and handed it over. It’s hard to describe how violated I felt at that moment. It was like getting raped and paying for it.

I was agitated when I arrived at work late that day. On the way, I thought about the efforts being made by NGOs to protect the rights of the eunuchs in India. But what about my rights, I thought indignantly. I wondered what legal course I had to bring these extortionists to justice.

When I narrated the incident to my colleagues, most were incredulous. Some were supportive, some derisive. “You should not have paid and should not have opened the locked gate,” they said. Some said the eunuchs should not be allowed to get away with it, as it would only embolden them. Some suggested that I go to the police.

Having the eunuchs blessing the newborns is an age-old superstition in our society. But I don’t see why we let them arm-twist us this way. Isn’t it for us to decide whether or not to pay? After the incident, my brother, a lawyer, lodged an FIR with the police. But an official at the Lake Police station told him he himself had paid Rs 5,000 to the eunuchs when his child was born to avoid trouble. The police admitted they are helpless. Who do we turn to, then?

As I relive the horror every night, I sometimes remember Mahesh Bhatt’s film Tamanna in which Tiku Hijra, the real-life eunuch saved the life of an abandoned girl child. Sadly, the heroic deeds of the Tiku Hijras get overshadowed by the misdeeds of an Asshi Hijra or a Chana Hijra who raided my home last week.

Thursday, July 15, 2004

Tree Love - by Tim Martin

thrust to the branches
screaming about everything
“i’m regulated”
to the trees and country
“hands are over my head”
with anatomy of clay
sprayed head to foot
with comic book colors
this state is unreal
i am made & remade
in the larchwood
which trades its needles
for this carnival performance
of the children of the sex of the state

Wednesday, July 14, 2004


I address this to all those who are worrying about the lack of visibility and organizing of transgendered people living in India. This is specifically about non-hijra transgendered persons. I share below briefly:

A. my personal process as a 32 year old, post-op,Indian, f2m.
B. my attempts at f2m/TG visibility, seeking support from existing Indian queer groups, their responses and gestures.
C. issues that arise out of these events and experiences: my queries and fears.


1976-77/4-5 years old/play school:
my first memory: I want to grow up to have the long side burns my father has.

13 years old/seventh class:
My girlfriend has heard of the possibility of ‘sex change’. I laugh.

16 years old/tenth class:
my parent finds me and my girlfriend,necking. I am called a lesbian; told that I should be taken to a psychiatrist as this is an abnormality. I say I am not abnormal. That I know I am not a lesbian. And that I don’t know what/who I am.

19 years old/First year,College :
I begin my search. I go through abnormal psychology textbooks at the Dixit Library of the All India Institute Of Medical Sciences (AIIMS), Delhi. I see the word “Transsexual” listed in the DSM (Diagnostic and Statistical Manual of Mental Disorders,)Document. I have found the word that I know names me.

I do research for 6 years. Meet surgeons and psychiatrists I have lost count of. Between 1995 and 1997, I have been assessed by two independent psychiatrists. Neither can give me leads to any other f2m person. They claim to have assessed some who don’t want to be contacted. I begin talking to my parents. The parent who once called me a lesbian, now calls me a ‘hijra’. I begin talking to extended family, to my lover, to professional collegues.

1997/26 years old/Working:
I start hormone therapy at AIIMS. This is their first f2m case. I get to know about a queer space for the first time. I go to one of its meets. It is a gay support group - Humrahi, at the Naz Foundation (India) Trust in Delhi.

27 years old/Working:
I share my research with the surgeon at AIIMS. We decide on the surgical approach. I have top surgery (mastectomy;chest surgery). This is their first f2m surgery.

28 years old/Working:
I meet the first other trans-identified person who wants to undergo sex reassignment. I begin the process of getting my gender identity legally changed.

Present/32 years old/Professional College:
Since my own reassignment,I have till date met 12 trans-identified persons living in India. Recently, I have initiated a yahoo group for transgenders, transsexuals and intersexuals of asian/diasporic
origin. (


Naz Foundation,(India)Trust:
In 1998-99, while undergoing sex reassignment,I was interested to start a space for transgender persons in Delhi. I approached the Naz Foundation,(India) Trust but their infrastructure was already blocked with exisiting groups/committments. Ms Anjali Gopalan however extended access to their internet facility to start collating information which I was to co-ordinate with the Project officer Incharge. Inspite of repeated phone calls and numerous visits where I was kept waiting endlessly, the Project Officer made it impossible for me to undertake the research work. Finally, I gave up.

Subsequently I approached Sangini, the queer women support group then with Naz (India). They did not feel ready for transgender persons to be part of the group. However, I started receiving phone calls from transpersons/those considering reassignment,forwarded by Sangini and another Delhi organization TARSHI (Talking About Reproductive and Sexual Health Issues). A couple of years later, Sangini invited me to hold information sessions for both their key persons and group members. Apparently, they have since opened up their space to
transgender women, but only those who have sexually reassigned.

From the many referrals by Sangini and Tarshi, there are three persons (2 f2ms and one m2f)who have actively pursued their desires for transition. Together with them I have formed a network in Delhi. We have been interacting and supporting each other and those who get in touch with us on various fronts. This has been a journey of some years together since the entire process of transition is a long drawn-out one and involves all kinds of undertakings from informational, emotional, financial, legal, medical, physical, social and family support. My parents have also become a part of this network, benefiting parents of other group members. Three of us are listed in the Humjinsi Book, with our permissions, under the
group name ‘Sampoorn’.

Humsafar Trust:
I think it was in 2002 when Mr Ashok Row Kavi mentioned to me telephonically about setting up a board and wanting a trans person on it. I asked him to write the details to me but have not heard from him

Aaj Tak: Around this time, as I recall, Ms Rukmini Sen, from the queer community, working with Aaj Tak, wanted me to feature on Television. I was not at all clear as to what this `visibility’ would do? For whom? And on whose terms? I declined.

Lawyers Collective: Mr Alok Gupta interviewed me for the article "Transgender,law and civil rights" for the magazine,THE LAWYERS, published by the Lawyers Collective.On the request of Mr Vivek Diwan from the Collective, I have shared with him affidavits submitted for the legal change of my gender identity. Currently I am also mediating between a TG person and Lawyers Collective on the request of the former who wishes to enter into a legal contract of marriage.

Combat Law: Ms Ashwini Sukhtankar interviewed me for the article "Complicating Gender: Rights Of Transsexuals In India" for the Combat Law issue: Vol.2 Issue 4/October-November,2003.

Ms Venu Arora. This documentary filmmaker, a co-student attending the course at the Sexuality Institute organized by TARSHI and CREA (Creating Resources For Empowerment In Action),in Pune, during March, 2004, asked for email ids of other transsexual persons I knew. I asked for a written statement ensuring confidentiality and her specific queries. I haven’t heard from her yet.

Aanchal Trust:
At the 2nd International Conference Of Masculinities, Sexualities and Cultures, Bangalore, June 2004, I put up a photographic Exhibition titled: “Miscellaneous-Daily Masculinities”. Ms Geeta Kumana,from Aanchal Trust had serious issues with one of the exhibits titled “Packing”, a photographic narrative on the dildo. Infact her issue was with one particular photograph out of a series of 5 of this narrative. In this photograph the dildo is in the palm, held close to the primary genital area. She commented to the effect that:

   You are violating me by publically displaying the photograph of a phallus. It is like flaunting the phallus in my face. Any ordinary Indian woman will have the response I am having.

While, on the one hand Ms Kumana’s response to the Dildo narrative illustrates a complete lack of a trans perspective, on the other, in a response to Raj Joshi’s email of 5th July, 2004, on the lgbt-india e-list, she invites F2Ms to join the Aanchal Trust.Such an invitation appears to be mere tokenism.

July 2004, Sangama Office, Bangalore. Kokila, a hijra person was gang raped by 10 men and later tortured by the police. I got involved on day one. During the F.I.R. Mr E. Manohar, head of  Sangama, outs me and another trans-identified person working in his office, to the investigating Lady Police Officer, without our permissions. I withdraw my active support and participate from outside. Before my leaving Bangalore, Mr E. Manohar extends the following invitation:
“Come some time again. Let this (Kokila’s case) die down. We will see then, what can be done about f2ms.”

The tokenism never seems to end.


On Organising:Ground Realities:

1. F2ms and m2fs are two very specific and statisticaly small groups within the larger one of ‘transgenders’. Infact, f2ms are in even a greater minority when compared to the m2fs. By transgenders here, I mean, all persons who are gender transgressing and whose gender expression does not fit into the binary of man/woman-male/female.

2. Sex reassignment surgery (S.R.S)is a complicated, time consuming and an expensive process. The Medical community in India is just beginning to undertake it in a professional and accountable manner. All the surgeries (except one) of members of our group were performed in Delhi and conducted under international guidelines. Persons undergoing S.R.S. must take responsibility of whom they are asking it from. If the person goes to a knife-happy surgeon, the person will get what a knife happy surgeon can deliver. The belief that any cosmetic surgeon can perform these surgeries is completely unfounded. These are highly specialized surgeries that have to be co-ordinated across medical departments of Gynecology, Andrology, Cosmetic and Reconstructive Surgery and Endocrinology.

It is imperative to state here that contrary to another misinformation circulating within the lgbt community in India, and in particular reference to communications over this e-list in recent days, I think I can say on behalf of all 4 members of Sampoorn (this email is being forwarded to the other 3), that



Perhaps it is a matter of time, and much more, before we have the organized numbers to ask what is our right from law, from medicine, from professional organizations, from families, from lovers.

There are lessons for us to learn from the history of lgbt organising the world over.There are identities which get left out or subsumed by the existing queer spaces. For example, the presence of trans-identified female bodied persons in lesbian spaces. Trans needs have not been met, even recongnised, in such spaces. Prevalent lesbian notions of ways of being are inadequate for trans needs. These notions do not enable/empower the trans-identified members of lesbian spaces. Another example would be the ongoing debate about who is the ‘koti’ ? (a male bodied person with female gender identity) The ‘Koti” is being understood as the ‘vernacular gay-identified person’ where as ‘she’ is clearly a transgender person.

Tied up with gender identity and expression are issues of class.  Female-bodied transgender persons, specifically those who desire but cannot economically/otherwise afford part or the whole gamut of reassignment, are the ones really being left out in the whole discourse/activism on sexuality and gender.

In addition, the intimacies of social and cultural relationships that create and nurture personhood are being taken away from trans-persons. We are losing lovers for not being man-enough or women-enough, both in straight and queer relationships. Recently a transperson was threatened by his lover’s siblings. Another is being hasseled for property; he is now a threat to the male-born child of his parents. Yet another is being forced into marriage as a “cure”. The documentation of non-hijra transgendered lives in
India is yet to begin.

To say that f2m trans persons are hardly visible/organized is unfair without understanding what it means and what it would take. When existing queer support spaces don’t have any trans perspective, when the medical community is still being located and educated, when law is still being dealt with, when dealing with family and friends is still being undertaken, it will take time and a lot more before meaningful coming together can happen.

   “How come you don’t see disabled people in spaces that you are in? It is not that they don’t exist?! Its that they can’t get to where you are”

This was shared, by a teacher at the earlier mentioned Sexuality Institute, on the subject of ‘Disability and Sexuality’.

Where are the T.G.s? Where are the f2ms? It is not that they don’t exist.

Why are the T.G.s and f2ms hardly seen in existing queer spaces? Why are they invisible even when they are there? Something about theses spaces is not offering them what they need. What could this be?

The conceptual foundations of most of the queer spaces in India is built on a sexual identity primarily determined by the sex of the one who is desired. This constructs the identity of being gay; of being lesbian.

What then constructs the identity of a Transgender? It is an identity of self. It is an identity of gender. Most of the exisiting queer spaces in India are not addressing Gender. They are primarily focused on Sexual Orientation.

Trans persons are not finding any meaningful space within existing queer/lgbt groups. These have infact been and are increasingly being trans-unfriendly; even transphobic. Two days ago, I was told by a transperson, who belongs to a lesbian support group, about what the key person there said to him: “the day you reassign, you count yourself out of the group”. Yet another lesbian support group asks m2fs to cross-dress to prove their credentials for claiming membership. In January, 2004, at the World Social Forum, Bombay, I was asked to leave a meeting, the topic of which was “Lesbian Torture” even after some of my lesbian friends there introduced me as a post-op f2m.

One of our critiques of heteropatriarchy has been that it has constructed and enforced only two genders. How are we doing any better when we too ask for the same gender conformity within existing queer spaces?! And what of those who do not want to reassign? Of those who want to but can’t; either due to money or disability or other health concerns or even social reasons? Or those who want to reassign partially? What about intersexuals? And what about transgenders/transsexuals/intersexuals who are gay/lesbian/bisexual/pansexual?

Where is the 't' in l.g.b.t?


Tuesday, July 13, 2004

Subject: India calling

From: gay_bombay@yahoogroups

Hi kari,

The Indian Penal Code 377 still outlaws anal penetration as punishable with upto life in prison.There are no supplementary laws which recognise same sex relationships in any form,which by default allows the law to penalise homosexuality per se. It is chillingly obvious how seriously this law violates the human righs of approx 20 million LGBTpeople who live in India. A small group of informed activists are trying to make their voice heard.Ingrained misinformed social prejudice from a culture steeped in centuries of hypocritical values,
make the battle that much harder.

We need all the help we can get.It is only by concerted and organised effort that we can soon join the comily of nations that recognise our rights.

Please stay in touch with the group,and by publicising our efforts you are making a big contribution.

Thank you for caring


A market and a Mosque, By Martin Foreman

First appeared on: A View from the Edge: The Martin Foreman Website

A market and a Mosque
By Martin Forman

Sylhet, Bangladesh: It’s eight o’clock in the evening and Tarique and
Paritosh are taking me out to look at the cruising spots. Until I flew in here this afternoon, all I knew of this provincial city and the surrounding area was that it was where most of the Bangladeshis in theUK come from – and since most of the Bangladeshis in the UK live in my home borough of Tower Hamlets, I feel a kind of affinity with the place. Whether or not Sylhet feels an affinity with me is a different matter.

We walk out of the Holy Side Hotel into the evening heat. I’ve been
living in a tropical climate for half a year now and I am still
disappointed by the fact that I have to wear clothes when I go out.
Despite the fact that most human bodies are better covered than bared, I’m a firm proponent of minimum clothing (loincloths for both sexes and a comfortable bra for women) any time the temperature rises above 20 degrees. Anyhow, I put that thought behind me as we walk towards the main road and Paritosh stops a baby-taxi  - one of the motor-powered three-wheelers ubiquitous in South and South-East Asia – and negotiates a ride.

Or rather fails to negotiate it. The driver has seen the presence of a white man and insists that Paritosh pay 100 taka (£1, $1.80) to take us the ten-minute ride to the market. Paritosh, annoyed, waves him away and stops the next baby-taxi. His price is 50 taka, still higher than market rate, but within reason. The three of us clamber in and head off.

Paritosh works for the Bandhu Social Welfare Society, a national
organisation that provides information on HIV and other issues for men who have sex with men. He’s the last stop on my five-day fact-finding visit, as part of a commission I’ve undertaken to see what additional information we need on sex between men. For four days I’ve been talking with various experts about every aspect of the subject, from indigenous identities to changing patterns of sexual behaviour. It’s been a fascinating time, learning people’s different perspectives on the subject and putting them together in a coherent framework. I’m not the first person to do this by any means – Shivananda Khan is a walking encyclopaedia on the subject – but like the sparrow perched on the back of an eagle, I’m vain enough to think that I can push our knowledge just a little bit further.

We drive through streets crowded with pedestrians, rickshaws, baby-taxis and the occasional car, getting off at the edge of the market, where Paritosh negotiates with the driver to stay until we return. We’re in a crowded street with little lighting and the faces that we pass look at me as if not quite certain what they’ve seen. After a hundred yards or so, when the street widens into an irregularly shaped square where open shops cast their light on traders whose wares are displayed on mats on the street in front of them, we step back into the shade of a deserted building and watch the scene.

Sylhet is known as the most conservative and religious part of Muslim
Bangladesh. That explains why there are so few women in the street,
although those women who can be seen are not veiled and some do not even wear scarves. No, this is an almost exclusively male population, of all ages and sizes, passing by on foot, rickshaw or baby-taxi, or waiting for customers. This is a well-known cruising spot, I have been told and for a few minutes I see nothing that tells me that any of these men is seeking sex, then, at the same time as Tarique points him out to me, I see a slender youth standing almost motionless as others walk past him, as in a cinematic special effect where his movements are slowed down while everyone else’s have speeded up.

And there’s another and another and another. Dotted around me are
elegant, handsome young men in shirts and lunghi - long skirts - that
are a little more colourful, a little more clean and a little more
tightly bound than the men around them. They are staring into the
distance with an expression that is at once distant and focused, as if announcing that they have no business here. But business they do have, because from time to time, someone will approach. And when they do, the ritual seems to be that neither addresses the other immediately, but stares past as if it were coincidence that they were so close, then,almost without looking at each other, a desultory conversation begins.

And so an old man in white with a thick moustache and a curved back
approaches the haughtiest youth, a fair-skinned broad-faced young man
who in other circumstances might have a career as an actor or a model, but the conversation does not go far. A few minutes later I see the old man in another part of the market drinking a tea with another youth. They are more engaged and in a few minutes they will disappear down an alleyway to where a room can be rented for 50 taka (£0.50, $0.90) for an hour.

We are joined by Ajoy, a Bandhu peer educator – someone who each evening goes out and talks to the young men, tells them about HIV/AIDS and condoms and the drop-in centre where they can see a doctor and meet other young men like themselves. I’ve already spoken to men who sell sex in Dhaka. I would like to do so here, but I do not want to deprive them of their earning time and I do not want to be the centre of attraction.

Things are changing, Ajoy tells me, in a number of ways. Firstly, the
money that the men make is going up – 50 to 100 taka now, instead of 30 to 50 taka two or three years ago. That means that their overall income an now be between 10,000 and 15,000 taka (£100 - £150 / $180 - $270) a month – considerably more than the Ajoy or Paritosh. It’s down to the fact that the town and its surrounds may appear as poor as elsewhere in Bangladesh, but the UK connection, with money sent home regularly or with emigrants returning to visit their families, means that there is more money around waiting to be spent. But many, it seems, spend as quickly as they earn and the idea of saving, of training for a job when they are over 25 or 30 and no longer able to count on their looks, does not occur to them.

And the second change? More condom use. Good news in a country where sex between men is widespread but HIV rates are still very low. What doesn’t seem to be happening, unlike in Dhaka, is a change to oral sex. There, my informants tell me, clients increasingly want to avoid the risk of contracting HIV in anal sex, as well as, I assume, they are increasingly enjoying the pleasures of mouthwork. Sex workers in Dhaka are pleased too, partly because it is safer and easier and partly because they can charge more money. But in Sylhet another change is taking place – clients are increasingly taking the passive role and the effeminate young men are taking on an unaccustomed masculine role.

I suspect that exterior forces are at work here. In Thailand the rigid division between “gay king” and “gay queen” is breaking down as imported pornography shows that masculine men enjoy being fucked as much as any effeminate queen. And, as expected, sex movies and images are easily available in Sylhet; Paritosh points out the stall where DVDs showing men-and-women, men-and-men and, no doubt women-and-women can be bought.

It’s time to move on. We walk back into the dark crowd. Many people seem unaware of me, but I am conscious of the glances of those who see me and stare directly into my eyes with an expression that melds curiosity with – I wonder if I am being irrational - hostility. I do not feel unsafe, despite the fact that this is a violent country, where street brawls, over the pettiest of excuses, are common, where the drivers of
baby-taxis in Dhaka lock themselves in metal cages to protect themselves from rioting mobs and where the two leading political parties sponsor gangs of competing thugs.

It is a short ride to the Shahjal Mazar, the shrine where centuries ago a Bengali saint died. We go through an archway and find ourselves in a marble courtyard outside a tall white mosque that stands impressively against the dark blue night. Directly in front of us are a tall broad-shouldered young man and his equally impressive girlfriend or bride. He is in casual clothes and she, unveiled, in a handsome dark red sari. But there are no other women, and many of the men are wearing the white caps that denote dedicated believers. I look round; like the market people seem to be moving with a sense of purpose, even if it is only two or three gathered in conversation, and I see no “sensitive” young men loitering ostensibly to take the evening air. Yet this location is well-known for religious men to find young friends. After all, sex between men in Bangladesh may be widespread but it is unacknowledged – two men can be together, hold hands, even sleep in the same bed without others construing a sexual relationship. And so men who are quick to preserve the chastity and fidelity of women turn to other men to slake their lust.

In the middle of the square I feel exposed. There is more light here and already more eyes are turning on me than did in the market. We walk towards a pool where earlier in the year the fish that lived there were poisoned; about the time a bomb exploded nearby, killing two people. Paritosh points out a couple of young men squatting by the pool, deep in conversation. One of his peer educators and a sex worker. I look round to see if I can spot other men for sale and find my eyes crossing with a short middle aged man in a yellow shirt and tie who asks me, in excellent, if accented English, and a tone that is nearer hostile than friendly, where I am from. I tell him, and the idea that Sylhetis might feel an affinity with Londoners evaporates in the intensity of his gaze.

Why are you here, he asks. I give him an answer that is almost true – to see this place, because I had heard it commemorates a famous martyr. Why do you like it? he asks. I hadn’t told him I liked it and had not developed an opinion, and my answer is poor, only that it is impressive and white. Within the space of this brief conversation we have been surrounded by at least twenty others, all male, from plump pubescent boys to skinny middle-aged men; not one smiles in welcome. My inquisitor repeats the question, but I have already turned away from him to suggest, to Paritosh’s and Tarique’s obvious relief, that maybe we should move on. I smile weakly at the man in yellow and follow my guides down a path that seems to lead nowhere in particular. For the first few paces my shoulders are tense, but we are not being followed.

We are indeed going nowhere in particular. If my curiosity is satisfied, Paritosh and Tarique imply, they can take me back to the hotel. Part of me wants to stay out, to observe the scene a little more, to see one of the older religious men approach a younger man, to watch them negotiate and walk away together, but it’s impossible; to stand still would be to attract another inquisitive crowd. So we are heading back across the square when the lights suddenly go out. Without saying a word,
Paritosh’s hands meet and hold on to mine (given his good looks and
welcoming personality, it’s a gesture I would have preferred at another time). Tarique quickly does the same and the three of us walk at a resolute pace back into secular streets.

I spend the rest of the evening watching cable television and marvelling at the homoerotic advertisements on the Star network aimed at India – in particular the hips of the handsome youth modelling “Killer – revealingly low jeans”, and the assortment of young men sporting Try International underwear. The next day, Tarique and I spend four hours at the airport, the victims of a flight cancelled thanks to a long impressive and blinding downpour. I spend some of the time watching a Hindi karate film which is refreshingly free of the song and dance that interrupts most Bollywood films.

The next day I am back home and twenty-four hours after later I read on BBC website that a bomb has exploded at the mosque in attempt to kill the visiting new British High Commissioner* -  a man who was himself born in Sylhet. No, it is clear that for some Sylhetis at least, the bonds that tie their homeland with Britain are bonds, not of love, but of hate.

* A high commissioner is an ambassador between Commonwealth countries.

Sunday, July 11, 2004

LGBT Rights Project Human Rights Watch

found on: lgbt-india

From Scott Long (
Lesbian, Gay, Bisexual, and Transgender Rights Project
Human Rights Watch

Dear fellow activist,

I want to introduce you to an important new program at Human Rights
Watch.  We have launched a Lesbian, Gay, Bisexual, and Transgender
Rights Project; we can now give permanent institutional form to our
commitment to combating violations based on sexual orientation or gender identity. I have accepted a position as Director of this new program.

Human Rights Watch, as many of you are aware, is one of the largest and best-known human rights organizations in the world.   We carry out timely and accurate investigations, offer informed policy
recommendations, and generate intense pressure to confront human rights abusers and defend basic freedoms.  Through vigilant monitoring, reporting, and advocacy, Human Rights Watch has advanced essential human rights protections in over ninety countries for twenty-five years.

This announcement of the Lesbian, Gay, Bisexual, and Transgender Rights Project is a belated one---due to the intensity of the work we’ve been engaged in since its start.  The first day of the program, March 1, saw me in Cairo, accompanied by Human Rights Watch’s executive director, Kenneth Roth, to release our report on Egypt’s persecution of men suspected of having sex with men.  “In A Time of Torture: The Assault of justice in Egypt’s Crackdown on Homosexual Conduct” detailed for the first time the full scope and sweep of a massive campaign of repression.  Since then, we have intensively lobbied Egypt’s government, as well as European and U.S. officials, to end the arrests. (You can find a copy of the report at

In March and April, we spent six weeks in Geneva, during the annual
session of the United Nations Commission on Human Rights.  Together with the International Gay and Lesbian Human Rights Commission (IGLHRC), we assisted over a dozen grassroots activists to attend the session, and meet and lobby government delegates.  The activists spoke out at panels and on the floor of the Commission itself about abuses based on sexual orientation and gender identity. They met with U.N. officials and networked with other non-governmental organizations. As a result, we saw unprecedented recognition of lesbian, gay, bisexual, and transgender issues at the U.N.’s most important human rights forum.  The voices and visions of campaigners for sexual autonomy gained unprecedented attention.  And many governments had to take unprecedented heed of people whose inherent dignity they steadily attack while, ironically, denying their very existence.  These committed, courageous activists sent a message to those who wield power: sexual rights matter.

These projects have set a demanding precedent for this program’s future work.  We will continue with detailed reporting about human rights violations based on sexual orientation and gender identity.  We will show their seriousness; the conditions that allow them to occur; and the changes needed to end them.  Most importantly, though:  we want to support activists like yourself wherever possible, in your vital situations and struggles.  We look forward to learning from you, and strategizing with you in responding to discrimination and abuse.  We hope to help build bridges between movements working in differentsituations, yet facing similar obstacles. We hope as well to help bridge the gap between activists doing essential work at the grassroots level, and the organizations and international institutions that have too often neglected lesbian, gay, bisexual, and transgender people’s concerns.

This new program builds on the substantial work Human Rights Watch has already undertaken in defending lesbian, gay, bisexual, and transgender people’s rights.  In past years, we have shown the brutal impact of Romania’s criminalization of homosexual conduct, and helped mobilize Europe for the repeal of sodomy laws continent-wide.  We have revealed the extent of violence against LGBT youth in U.S. schools, and shown how school officials’ toleration of such “bullying” violates international human rights standards.  

We are the only “mainstream” international human rights organization to have taken a stand supporting equality in civil marriage.  Together with IGLHRC, we have documented the effects of state-sponsored homophobic rhetoric on people’s lives in southern Africa.    In the coming months Human Rights Watch will release reports
on widespread discrimination and abuse targeting LGBT people in Turkey,and on appalling homophobic violence in Jamaica.  (For more information on all this, visit our webpage at

You, as activists, make all these efforts possible.  The constituencies you support and the information you gather are the backbone, and inspiration, behind our own work in support of lesbian, gay, bisexual, and transgender people’s rights.  We want to work closely with you in the coming years.  We encourage you to contact us at any time—with questions, suggestions, or concerns.  We especially encourage you to tell us about cases of abuse or discrimination as  they occur.  We want to cooperate with you in confronting such cases--and in ending their underlying causes.

I have been a human rights activist for almost a decade and a half.  For much of that time I worked, like many of you, at the grassroots level. In launching this program at Human Rights Watch, I commit us to continue to think locally as well as globally.   Yet I also hope the credibility this organization has amassed over a quarter-century of advocacy can be used to advance a simple principle: that lesbian, gay, bisexual, and transgender people’s rights are not “special” or trivial, but basic to universal rights protections.

Sexual rights are not a privilege, nor the property of a minority.  They are everyone’s birthright and everyone’s concern.  The man who faces arrest and torture in Egypt because he fell in love with a man; the lesbian in South Africa whose family believes that rape will “cure” her; the transgender woman in the United States harassed and brutalized on the street---these people share, despite their differences of geography and detail, a common cause with the woman confronting a sentence of death for adultery in Nigeria; with the mother ostracized and shunned by her village community in Jamaica because she contracted HIV/AIDS from a sexual partner; and with the woman in Pakistan whose parents can take her life with impunity, because her behavior supposedly strikes at the family’s “honor”---and her safety is unprotected by the state.  All these people endure abuse, and are denied their basic rights, because they have  claimed their sexual and physical autonomy in ways the state condemns and society fears.  We must stand together in asserting that our bodies are our own, that our pleasures like our pains are part of us, that our privacy and integrity and dignity cannot be bargained away.

At Human Rights Watch, we look forward to serving you, and standing with you, in the years to come.

In solidarity,

Scott Long
Lesbian, Gay, Bisexual, and Transgender Rights Project
Human Rights Watch
350 Fifth Avenue, 34th Floor
New York, NY 10118  USA
Tel. +01 (212) 216-1297
Fax +01 (212) 736-1300

The Gender bill of Rights by JoAnn Roberts

It is time for the transgendered community to take a stand, a strong stand, against all gender-based discrimination simply because some people are different and simply because some people do not fit into current social norms of gender roles. It is time the gender-based community articulate this stand in words that clearly define exactly what our gender rights are. It is time to stand alongside other minority rights movements to declare these gender rights as follows:
The Right To Assume A Gender Role

Every human being has within themselves an idea of who they are and what they are capable of achieving. That identity and capability shall not be limited by a person's physical or genetic sex, nor by what any society may deem as "masculine" or "feminine" behavior. It is fundamental, then, that each individual has the right to assume gender roles congruent with one's self-perceived identity and capabilities, regardless of physical sex, genetic sex, or sex role.

Therefore, no person shall be denied their Human and/or Civil Rights on the basis that their gender role or perceived gender role is not congruent with their genetic sex, physical sex, or sex role.

Indian supreme court on rape laws

From Queer NLS on lgbt- India@yahoo

am sending the supreme court judgment where it refused to read the definition of rape broadly to include non-peno-vaginal sexual assault. one of the justifications given for retaining s.377 is that it is the only section currently where such non peno-vaginal sexual assault can be punished (its an irony that even the perpetrators of sexual violence against kokila in bangalore are ever punished, it would be under s. 377).


Writ Petition (Crl.) No. 33 of 1997 with SLP (Crl.) Nos. 1672-1673/2000

Decided On: 26.05.2004

Appellants: Sakshi
Respondent: Union of India (UOI) and Ors.

Hon'ble Judges:
S. Rajendra Babu, C.J. and G.P. Mathur, J.

R.N. Trivedi, Additional Solicitor General, F.S. Nariman, Sr. Adv. (A.C.) (N.P.), Naina Kapoor, Meenakshi Arora, Hona Chettri, Tara Chandra Sharma, P. Parmeswaran, Sujit Kumar Bhattacharya, Goodwill Indeevar, Shashi Kiran, Anil Katiyar, D.N. Goburdhan, Pinky Anand, Geeta Luthra, Syed Ali Ahmad, Syed Tanweer Ahmad, G.G. Upadhyay and R.D. Upadhyay, Advs. for the appearing parties

Constitution of India - Articles 13, 14, 15(3), 17, 18, 19, 20(1), 21 and 32; Indian Penal Code, 1860 - Sections 354, 375, 376, 376(2), 376A to 376D, 377, 506 and 511; Criminal Law (Amendment) Act, 1983; Dowry Prohibition Act - Section 2; Foreign Exchange Regulation Act - Section 35 and 35(2); Customs Act - Section 104; Sexual Offences (Amendment) Act, 1976 - Section 1(1); Offences against Person Act, 1861 - Sections 18, 20, 42 and 47; Aliens Control Act, 1991 - Section 25(5); Criminal Procedure Code (CrPC) - Sections 167(1), 167(2), 273, 327(1), 327(2) and 715.1

Cases Referred:
S. Gopal Reddy v. State of A.P., 1996 (4) SCC 596; Seaford Court Estates Ltd. v. Asher, (1949) 2 All ER 155; R v. R, (1991) 4 All ER 481; Directorate of Enforcement v. Deepak Mahajan and Anr., 1994 (3) SCC 440; Regina v. Burstow; Regina v. Ireland, 1997 (4) All ER 74; Gay and Lesbian Equality and Ors. v. The Minister of Home Affairs and Ors., Case CCT 10/99; Vishaka v. State of Rajasthan, 1997 (6) SCC 241; Lakshmi Kant Pandey v. Union of India, 1984 (2) SCC 244; State of Punjab v. Major Singh, 1966 (Supp) SCR 266; Mishri Lal v. Dhierendra Nath, 1999 (4) SCC 11; Muktul v. Manbhari, AIR 1958 SC 918; Admiralty Commrs. v. Valverda (Owners), 1938 AC 173 (AC); Button v. Director of Public Prosecution, 1966 AC 591; Her Majesty The Queen v. D.O.L. and the Attorney General of Canada, etc., (1993) 4 SCR 419; State of Maharashtra v. Dr. Praful B Desai, 2003 (4) SCC 601; State of Punjab v. Gurmit Singh, 1996 (2) SCC 384

Citing Reference:

*                Mentioned

**              Relied On

****          Distinguished

S. Gopal Reddy v. State of A.P.                                                                    *
Seaford Court Estates Ltd. v. Asher                                                                           *
R v. R                                                                                                      ****
Directorate of Enforcement v. Deepak Mahajan and Anr.                                    *
Regina v. Burstow; Regina v. Ireland                                                              ****
Gay and Lesbian Equality and Ors. v. The Minister of Home Affairs and Ors.           *

Vishaka v. State of Rajasthan                                                                      *

Lakshmi Kant Pandey v. Union of India                                                           *
State of Punjab v. Major Singh                                                                     **
Mishri Lal v. Dhierendra Nath                                                                        **
Her Majesty The Queen v. D.O.L. and the Attorney General of Canada, etc.          **

State of Maharashtra v. Dr. Praful B Desai                                                      **

State of Punjab v. Gurmit Singh                                                                    **


G.P. Mathur, J.

1. This writ petition under Article 32 of the Constitution has been filed by way of public interest litigation, by Sakshi, which is an organisation to provide legal, medical, residential, psychological or any other help, assistance or charitable support for women, in particular those who are victims of any kind of sexual abuse and/or harassment, violence or any kind of atrocity or violation and is a violence intervention centre. The respondents arrayed in the writ petition are (1) Union of India; (2) Ministry of Law and Justice; and (3) Commissioner of Police, New Delhi. The main reliefs claimed in the writ petition arc as under :

A) Issue a writ in the nature of a declaration or any other appropriate writ or direction declaring inter alia that "sexual intercourse" as contained in Section 375 of the Indian Penal Code shall include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vaginal and finger/anal penetration and object/vaginal penetration;

B) Consequently, issue a writ, order or direction in the nature of a direction to the respondents and its servants and agents to register all such cases found to be truly on investigation, offences falling within the broadened interpretation of "sexual intercourse" set out in prayer (A) aforesaid as offences under Section 375, 376 and 376A to 376D of the Indian Penal Code, 1860;

C) Issue such other writ order or direction as this Hon'ble Court may deem appropriate in the present facts and circumstances.

The petition is thus restricted to a declaratory relief and consequential directions.

2. It is set out in the writ petition that the petitioner has noticed with growing concern the dramatic increase of violence, in particular sexual violence against women and children as well as the implementation of the provisions of Indian Penal Code namely Sections 377, 375/376 and 354 by the respondent authorities. The existing trend of the respondent authorities has been to treat sexual violence, other than penile/vaginal penetration, as lesser offences falling under either Section 377 or 354 of the IPC and not as a sexual offence under Section 375/376 IPC. It has been found that offences such as sexual abuse of minor children and women by penetration other than penile/vaginal penetration, which would take any other form and could also be through use of objects whose impact on the victims is in no manner less than the trauma of penile/vaginal penetration as traditionally understood under Section 375/376, have been treated as offences tailing under Section 354 of the IPC ! as
outraging the modesty of a women or under Section 377 IPC as unnatural offenses.

3. The petitioner through the present petition contends that the narrow understanding and application of rape under Section 375/376 IPC only to the cases of penile/vaginal penetration runs contrary to the existing contemporary understanding of rape as an intent to humiliate, violate and degrade a woman or child sexually and, therefore, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of the Constitution.

4. The petitioner submits that a plain reading of Section 375 would make it apparent that the term "sexual intercourse" has not been defined and is, therefore, subject to and is capable of judicial interpretation. Further the explanation to Section 375 IPC does not in any way limit the term penetration to mean penile/vaginal penetration. The definition of the term rape as contained in the Code is extremely wide and takes within its sweep various forms of sexual offenses. Limiting the understanding of "rape" to abuse by penile/vaginal penetration only, runs contrary to the contemporary understanding of sexual abuse law and denies majority of women and children access to adequate redress in violation of Article 14 and 21 of the Constitution. Statistics and figures indicate that sexual abuse of children, particularly minor girl, children by means and manner other than penile/vaginal penetration is common and may take the form of penile/anal penetration, peni! le/oral penetration,
finger/vaginal penetration or object/ vaginal penetration. It is submitted that by treating such forms of abuse as offenses falling under Section 354 IPC or 377 IPC, the very intent of the amendment of Section 376 IPC by incorporating Sub-section 2(f) therein is defeated. The said interpretation is also contrary to the contemporary understanding of sexual abuse and violence all over the world.

5. The petitioner submits that mere has for some time now been a growing body of feminist legal theory and jurisprudence which has clearly established rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration. Restricting an understanding of rape in terms sought to be done by the respondent authorities and its agents reaffirms the view that rapists treat rape as sex and not violence and thereby condone such behaviour especially when it comes to sexual abuse of children.

6. In this regard, reference is invited to the observations of a renowned expert on the issue of sexual abuse :

"....... in rape .... the intent is not merely to "take", but to humiliate and degrade ..... Sexual assault in our day and age is hardly restricted to forced genital copulation, nor is it exclusively a male-on-female offence. Tradition and biologic opportunity have rendered vaginal rape a particular political crime with a particular political history, but the invasion may occur through the mouth or the rectum as well. And while the penis may remain the rapist's favourite weapon, his prime instrument of vengeance...... it is not in fact his only tool. Sticks, bottles and even fingers are often substituted for the "natural" thing. And as men may invade women through other offices, so too, do they invade other men. Who is to say that the sexual humiliation suffered through forced oral or rectal penetration is a lesser violation of the personal, private inner space, a lesser injury to mind, spirit and sense of self ?" (Susan Brownmiller, Against Our! Will 1986).

7. The petitioner further submits that the respondent authorities and their agents have failed to take into consideration the legislative purpose of Section 377 IPC. Reference has also been made to The Law Commission of India Report (No. 42) of 1971 pp. 281. While considering whether or not to retain Section 377 IPC, the Commission found as under :

"There are, however, a few sound reasons for retaining the existing law in India. First it cannot be disputed that homosexual acts and tendencies on the pan of one spouse may affect the married life and happiness of the other spouse, and from this point of view, making the acts punishable by law has social justification. Secondly, even assuming that acts done in private with consent do not in themselves constitute a serious evil, there is a risk involved in repealing legislation which has been in force for a long time........ Ultimately, the answer to the question whether homosexual acts ought to be punished depends on the view one takes of the relationship of criminal law to morals. .... We are inclined to think that Indian society, by and large, disapproves of homosexuality and this disapproval is strong enough to justify it being treated as a criminal offence even where adults indulge in it in private."

In view of the Commission's conclusions regarding the purview of Section 377 IPC, the said section was clearly intended to punish certain forms of private sexual relations perceived as immoral. Despite the same, the petitioner submits, the respondent authorities have, without any justification, registered those cases of sexual violence which would otherwise fall within the scope and ambit of Section 375/376 IPC, as cases of moral turpitude under Section 377 IPC. It is submitted that the respondent authorities and their agents have wrongly strained the language of Section 377 IPC intended to punish "homosexual" behaviour to punish more serious cases of sexual violence against women and children when the same ought to be dealt with as sexual offences within the meaning of Section 375/376 IPC in violation of Articles 14 and 21 of the Constitution of India.

8. It is submitted that Article 15(3) of the Constitution of India allows for the State to make special provision for women and children. It follows that "special provision" necessarily implies "adequate" provision. Further, that the arbitrary and narrow interpretation sought to be placed by the respondent authorities and their agents on Section 375/376 renders the effectiveness of redress under the said Sections and in particular under Section 376(2)(f) meaningless in violation of Article 15(3) of the Constitution of India. The petitioner has also referred to the U.N. Right of Child Convention ratified by the respondent No. 1 on 11th December, 1993 as well as the U.N. Convention on the Elimination of Discrimination Against Women which was ratified in August 1993. In view of the ratification, the respondent No. 1 has created a legitimate expectation that it shall adhere to its International commitments as set out under the respective Conventions. In the p! resent case, however, the existing interpretation of rape sought to be imposed by the respondent authorities and their agents is in complete violation of such International commitments as have been upheld by this Court.

9. By an order passed on 3.11.2000 the parties were directed to formulate issues which arise for consideration. Accordingly, the petitioner has submitted the following issues and legal propositions which require consideration by the Court :

(a) Given that modem feminist legal theory and jurisprudence look at rape as an experience of humiliation, degradation and violation rather than an outdated notion of penile/vaginal penetration, whether the term "rape" should today be understood to include not only forcible penile/vaginal penetration but all forms of forcible penetration including penile/oral penetration, penile/anal penetration, object or finger/vaginal and object or finger/anal penetration.

(b) Whether all forms of non-consensual penetration should not be subsumed under Section 373 of the Indian Penal code and the same should not be limited to penile, vaginal penetration only.

(c) In particular, given the widespread prevalence of child sexual abuse and bearing in mind the provisions of the Criminal Law (Amendment) Act, 1983 which specifically inserted Section 376(2)(f) envisaging the offence of "rape" of a girl child howsoever young below 12 years of age, whether the expression "sexual intercourse" as contained in Section 375 of the Indian Penal Code should correspondingly include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration; and whether the expression "penetration" should not be so clarified in the Explanation to Section 375 of the Indian Penal Code.

(d) Whether a restrictive interpretation of "penetration" in the Explanation to Section 375 (rape) defeats the very purpose and intent of the provision for punishment for rape under Section 376(2)(f) "Whosoever commits rape on a woman when she is under twelve years of age."

(e) Whether, penetration abuse of a child below the age of 12 should no longer be arbitrarily classified according to the 'type' of penetration (ignoring the 'impact' on such child) either as an "unnatural offence" under Section 377 IPC for penile/oral penetration and penile/anal penetration or otherwise as "outraging the modesty of a woman" under Section 354 for finger penetration or penetration with an inanimate object.

(f) Whether non-consensual penetration of a child under the age of 12 should continue to be considered as offences under Section 377 ("Unnatural Offences") on par with certain forms of consensual penetration (such as consensual homosexual sex) where a consenting party can be held liable as an abettor or otherwise.

(g) Whether a purposive/teleological interpretation of "rape" under Section 375/376 requires taking into account the historical disadvantage faced by a particular group (in the present case, women and children) to show that the existing restrictive interpretation worsens that disadvantage and for that reason fails the test of equality within the meaning of Article 14 of the Constitution of India.

(h) Whether the. present narrow interpretation treating only eases of penile/vaginal penetration as rape, adversely affects the sexual integrity and autonomy of women and children in violation of Article 21 of Constitution of India.

10. Counter affidavit on behalf of respondents No. 1 and 2 has been filed by Mrs. G. Mukerjee. Director in the Ministry of Home Affairs. It is stated therein that Sections 375 and 376 have been substantially changed by the Criminal Law (Amendment) Act, 1983. The same Act has also introduced several new Sections viz. 376A, 376B, 376C and 376D IPC. These sections have bean inserted with a view to provide special/adequate provisions for women and children. The term "rape" has been clearly defined under Section 375 IPC. Penetration other than penile/vaginal penetration are unnatural sexual offences. Stringent punishments are provided for such unnatural offences under Section 377. The punishment provided under Section 377 is imprisonment for life or imprisonment of either description for a term which may extend to 10 years and shall also be liable to fine. Section 377 deals with unnatural offences and provides for a punishment as severe as that provided for rape in Sect! ion 376. Section 354 and 506 have been framed with a view to punish lesser offence of criminal assault in the form of outraging the modesty of a woman, whereas Sections 376 and 377 provide stringent punishment for sexual offences. The types of several offences as mentioned by the petitioner i.e. penile/anus penetration, penile/oral penetration, finger/anile penetration, finger/vaginal penetration or object/vaginal penetration are serious sexual offences of unnatural nature and are to be covered under Section 377 which provides stringent punishment. Therefore, the plea of petitioner that offences under Section 377 are treated as lesser offences is incorrect. It is also submitted in the counter affidavit that penetration of the vagina, anus or urethra of any person with any part of the body of another person other than penile penetration is considered to be unnatural and has to be dealt with under Section 377 IPC. Section 376(2)(f) provides stringent punishment for committing rape on a woman ! when she is under the age of 12 years. Child sexual abuse of any nature, other than penile penetration, is obviously unnatural and are to be dealt with under Section 377 IPC. It is further submitted that Section 354 IPC provides for punishment for assault or criminal force to woman to outrage her modesty. Unnatural sexual offences can not be brought under the ambit of this Section. Rape defined under Section 375 is penile/vaginal penetration and all other sorts of penetration are considered to be unnatural sexual offences. Section 377 provides stringent punishment for such offences. It is denied that provisions of Sections 375, 376 and 377 are violative of fundamental rights, under Articles 14, 15(3) and 21 of the Constitution of India. Sexual penetration as penile/anal penetration, finger/vaginal and finger/anal penetration and object and vaginal penetration are most unnatural forms of perverted sexual behaviour for which Section 377 provides stringent punishment.

11. Ms. Meenakshi Arora, learned counsel for the petitioner has submitted that Indian Penal Code has to be interpreted in the light of the problems of present day and a purposive interpretation has to be given. She has submitted that Section 375 IPC should be interpreted in the current scenario, especially in regard to the fact that child abuse has assumed alarming proportion in recent times. Learned counsel has stressed that the words "sexual intercourse" in Section 375 IPC should be interpreted to mean all kinds of sexual penetration of any type of any orifice of the body and not the intercourse understood in the traditional sense. The words "sexual intercourse" having not been defined in the Penal Code, there is no impediment in the way of the Court to give it a wider meaning so that the various types of child abuse may come within its ambit and the conviction of an offender may be possible under Section 376 IPC, In this connection, she has referred to! United Nations Convention On
The Elimination Of All Forms Of Discrimination Against Women, 1979 and also Convention On The Rights Of The Child adopted by the General Assembly of the United Nations on 20th February, 1989 and especially to Articles 17(e) and 19 thereof, which read as under :

Article 17

States Parties recognise the important function performed by the mass media and shall ensure that the child has access to information and material from a diversity of national and international sources, especially those aimed at the promotion of his or her social, spiritual and moral well-being and physical and mental health. To this end, States Parties shall --

(a) ................. (Omitted as not relevant)

(e) Encourage the development of appropriate guidelines for the protection of the child from information and material injurious to his or her well-being, bearing in mind the provisions of Articles 13 and 18. (contiuned)

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical and mental violence, injury or abuse, neglect or negligent treatment maltreatment or exploitation including sexual abuse, while in the care of parent(s), legal guardian(s) or any other persons who has the care of the child.

2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.

12. In support of her submission, learned counsel has referred to following passage of statutory interpretation by F.A.R. Bennion (Butterworths -- 1984) at page 355-357 :

"While it remains law, an Act is to be treated as always speaking. In its application on any date, the language of the Act, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.

It is presumed that Parliament intends the Court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed.

In particular where, owing to developments occurring since the original passing of an enactment, a counter-mischief comes into existence or increases, it is presumed that Parliament intends the Court so to construe the enactment as to minimise the adverse effects of the counter-mischief.

The ongoing Act. In construing an ongoing Act, the interpreter is to presume that Parliament intended the Act to be applied at any future time in such a way as to give effect to the true original intention. Accordingly, the interpreter is to make allowances for any relevant changes that have occurred, since the Act's passing, in law, social conditions, technology, the meaning of words, and other matters.

An enactment of former days is thus to be read today, in the light of dynamic processing received over the years, with such modification of the current meaning of its language as will now give effect to the original legislative intention. The reality and effect of dynamic processing provides the gradual adjustment. It is constituted by judicial interpretation, year in and year out. It also comprises processing by executive officials."

In this connection, she has also referred to S. Gopal Reddy v. State of A.P. 1996 (4) SCC 596 where the Court referred to the following words of Lord Denning in Seaford Court Estates Ltd. v. Asher (1949) 2 All ER 153 :

"............... It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a detect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, bat also from a consideration of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature ....... A Judge should ask himself the question how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out ? He must then do as they would have done. A Judge must not alter the material of which the Act is woven, but he can and should iron out the creases."

And held that it is a well known rule of interpretation of Statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a Statute and that the Courts must look to the object which the Statute seeks to achieve while interpreting any of the provisions of the Act and a purposive approach is necessary. Accordingly, the words "at or before or after the marriage as consideration for the marriage" occurring in Section 2 of the Dowry Prohibition Act were interpreted to mean demand of dowry at the "negotiation stage" as a consideration for proposed marriage and "marriage" was held to include the "proposed marriage" that may not have taken place. Reference is also made to Directorate of Enforcement v. Deepak Mahajan and Anr. 1994 (3) SCC 440, wherein it was held that a mere mechanical interpretation of the words devoid of concept or purpose will reduce most of legislation to futil! ity and that it is a salutary rule, well
established, that the intention of the legislature must be found by reading the Statute as a whole. Accordingly, certain provisions of FERA and Customs Act were interpreted keeping in mind that the said enactments were enacted for the economic development of the country and augmentation of revenue. The Court did not accept the literal interpretation suggested by the respondent therein and held that Sub-section (1) and (2) of Section 167 Cr.P.C. are squarely applicable with regard to the production and detention of a person arrested under the provisions of Section 35 of FERA and Section 104 of Customs Act and that a Magistrate has jurisdiction under Section 167(2) Cr.P.C. to authorize detention of a person arrested by an authorised officer of the Enforcement Directorate under FERA and taken to the Magistrate in compliance of Section 35(2) of FERA.

13. Ms. Meenakshi Arora has submitted that this purposive approach is being adopted in some of other countries so that the criminals do not go unscathed on mere technicality of law. She has placed strong reliance on some decisions of House of Lords to substantiate her contentions and the most notable being R v. R (1991) 4 All ER 481 where it was held as under :

"The rule that a husband cannot be criminally liable for raping his wife if he has sexual intercourse with her without her consent no longer forms part of the law of England since a husband and wife are now to be regarded as equal partners in marriage and it is unacceptable that by marriage the wife submits herself irrevocably to sexual intercourse in all circumstances or that it is an incident of modern marriage that the wife consents to intercourse in all circumstances, including sexual intercourse obtained only by force. In Section 1(1) of the Sexual Offences (Amendment) Act, 1976, which defines rape as having 'unlawful' intercourse with a woman without her consent, the word 'unlawful' is to be treated as mere surplusage and not as meaning 'outside marriage', since it is clearly unlawful to have sexual intercourse with any woman without her consent."

The other decision cited by learned counsel is Regina v. Burstow and Regina v. Ireland 1997 (4) All ER 74 where a person accused of repeated silent telephone calls accompanied on occasions by heavy breathing to women was held guilty of causing psychiatric injury amounting to bodily harm under Section 42 of Offences against the Person Act, 1861. In the course of the discussion, Lord Steyn observed that the criminal law has moved on in the light of a developing understanding of the link between the body and psychiatric injury and as a matter of current usage, the contextual interpretation of "inflict" can embrace the idea of one person inflicting psychiatric injury on another. It was further observed that the interpretation and approach should, so far as possible, be adopted which treats the ladder of offences as a coherent body of law. Learned counsel has laid emphasis on the following passage in the judgment :

"The proposition that the Victorian, legislator when enacting Sections 18, 20 and 47 of the Act 1861, would not have had in mind psychiatric illness is no doubt correct. Psychiatry was in its infancy in 1861. But the subjective intention of the draftsman is immaterial. The only relevant enquiry is as to the sense of the words in the context in which they are used. Moreover the Act of 1861 is a statute of the "always speaking" type : the statute must be interpreted in the light of the best current scientific appreciation of the link between the body and psychiatric injury."

It has thus been contended that the words "sexual intercourse" occurring in Section 375 IPC must be given a larger meaning than as traditionally understood having regard to the monstrous proportion in which the cases of child abuse have increased in recent times. She has also referred to a decision of Constitutional Court of South Africa in the National Coalition for Gay and Lesbian Equality and Ors. v. The Minister of Home Affairs and Ors. -- Case CCT 10/99 wherein it was held that Section 25(5) of the Aliens Control Act 96 of 1991, by omitting to confer on persons, who are partners in permanent same sex life partnerships, the benefits it extends to spouses, unfairly discriminates, on the grounds of their sexual orientation and marital status, against partners in such same-sex partnerships who are permanently and lawfully resident in the Republic. Such unfair discrimination limits the equality rights of such partners guaranteed to them by Section 9 of the Constitu! tion and their right to dignity under Section 10. It was further held that it would not be an appropriate remedy to declare the whole of Section 25(5) invalid. Instead, it would be appropriate to read in, after the word "spouse" in the section, the words "or partner, in a permanent same-sex life partnership".

14. Ms. Meenakshi Arora has also placed before the Court the judgments rendered on 10th December, 1998 and 22nd February, 2001 by the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. Under Article 5 of the Statute of the International Tribunal, rape is a crime against humanity. Rape may also amount to a grave breach of the Geneva Conventions, a violation of the laws or customs of the war or an act of genocide, if the requisite elements are met and may be prosecuted accordingly. The Trial Chamber after taking note of the fact that no definition of rape can be found in international law, proceeded on the following basis :

"Thus, the Trial Chamber finds that the following may be accepted as the objective elements of rape :

(i) the sexual penetration, however slight :

(a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or

(b) of a mouth of the victim by the penis of the perpetrator;

(ii) by coercion or force or threat of force against the victim or a third person."

In the second judgment of the Trial Chamber dated 22nd February, 2001, the interpretation which focussed on serious violations of a sexual autonomy was accepted.

15. Shri R.N. Trivedi, learned Additional Solicitor General appearing for the respondents, has submitted that International Treaties ratified by India can be taken into account for framing guidelines in respect of enforcement of fundamental rights but only in absence of municipal laws as held in Vishaka v. State of Rajasthan 1997 (6) SCC 241 and Lakshmi Kant Pandey v. Union of India 1984 (2) SCC 244. When laws are already existing, subsequent ratification of International Treaties would not render existing municipal laws ultra vires of Treaties in case of inconsistency. In such an event the State through its legislative wing can modify the law to bring it in accord with Treaty obligations. Such matters are in the realm of State policy and are, therefore, not enforceable in a Court of law. He has further submitted that in International law, ratified Treaties can be deemed interpreted in customary law unless the former are inconsistent with the domestic laws or decisions of it! s
judicial Tribunals. The decision of the International Tribunal for the Crimes committed in the Territory of the Former Yugoslavia cannot be used for interpretation of Section 354 and 375 IPC and other provisions. Even decisions of International Court of Justice are binding only on the parties to a dispute or intervenors in view of Articles 92, 93 and 94 of the UN Charter and Articles 59 and 63 of the IJC Statutes. Learned counsel has also submitted that no writ of mandamus can be issued to the Parliament to amend any law or to bring it in accord with Treaty obligations. He has also submitted that Sections 354 and 375 IPC have been interpreted in innumerable decisions of various High Courts and also of the Supreme Court and the consistent view is that to hold a person guilty of rape, penile penetration is essential. The law on the point is similar both in England and USA. In State of Punjab v. Major Singh 1966 (Supp) SCR 266 it was held that if the hymen is ruptured by inser! ting a
finger, it would not amount to rape. Lastly, it has been submitted that a writ petition under Article 32 of the Constitution would not lie for reversing earlier decisions of the. Court on the supposed ground that a restrictive interpretation has been given to certain provisions of a Statute.

16. In support of his submission Shri Trivedi has placed reliance on Volume 11(1) of Halsbury's Laws of England para 514 (Butterworths --1990) wherein unlawful sexual intercourse with woman without her consent has been held to be an essential ingredient of rape. Reference has also been made to Volume 75 Corpus Juris Secundum para 10, wherein it is stated that sexual penetration of a female is a necessary element of the crime of rape, but the slightest penetration of the body of the female by the sexual organ of the male is sufficient. Learned counsel has also referred to Principles Of Public International Law by Ian Brownlie, where the learned author, after referring to some decisions of English Courts has expressed an opinion that the clear words of a Statute bind the Court even if the provisions are contrary to international law and that there is no such thing as a standard of international law extraneous to the domestic law by a Kingdom and that international law as such ! can
confer no rights cognizable in the municipal courts. Learned counsel has also referred to Dicey and Morris on The Conflict of Laws wherein in the Chapter on the enforcement of foreign law, following Rule has been stated :

"English Courts will not enforce or recognise a right, power, capacity, disability or legal relationship arising under the law of a foreign country, if the enforcement or recognition of such right, power, capacity, disability or legal relationship would be inconsistent with the fundamental public policy of English law."

With regard to penal law, it has been stated as under :

"The common law considers crimes as altogether local, and congnisable and punishable exclusively in the country where they are committed.... Chief Justice Marshall, in delivering the opinion of the Supreme Court, said : 'The Courts of no country execute the penal laws of another'."

17. This Court on 13.1.1998 referred the matter to the Law Commission of India for its opinion on the main issue raised by the petitioner, namely, whether all forms of penetration would come within the ambit of Section 375 IPC or whether any change in statutory provisions need to be made, and if so, in what respect ? The Law Commission had considered some of the matters in its 156th Report and the relevant extracts of the recommendation made by it in the said Report, concerning the issue involved, were placed before the Court. Para 9.59 of the Report reads as under :

"9.59 Sexual-child abuse may be committed in various forms such as sexual intercourse, carnal intercourse and sexual assaults. The cases involving penile penetration into vagina are covered under Section 375 of the IPC. If there is any case of penile oral penetration and penile penetration into anus, Section 377 IPC dealing with unnatural offences, i.e., carnal intercourse against the order of nature with any man, woman or animal, adequately takes care of them. If acts such as penetration of finger or any inanimate object into vagina or anus are committed against a woman or a female child, the provisions of the proposed Section 354 IPC whereunder a more severe punishment is also prescribed can be invoked and as regards the male child, the penal provisions of the IPC concerning 'hurt', 'criminal force' or 'assault' as the case may be, would be attracted. A distinction has to be naturally maintained between sexual assault/use of criminal force falling under Section 354, s! exual offences
falling under Section 375 and unnatural offences falling under Section 377 of the Indian Penal Code. It may not be appropriate to bring unnatural offences punishable under Section 377 IPC or mere sexual assault or mere sexual use of criminal force which may attract Section 354 IPC within the ambit of 'rape' which is a distinct and graver offence with a definite connotation. It is needless to mention that any attempt to commit any of these offences is also punishable by virtue of Section 511 IPC. Therefore, any other or more changes regarding this law may not be necessary."

Regarding Section 377 IPC, the Law Commission recommended that in view of the ongoing instances of sexual abuse in the country where unnatural offences is committed on a person under age of eighteen years, there should be a minimum mandatory sentence of imprisonment for a term not less than two years but may extend to seven years and fine, with a proviso that for adequate and special reasons to be recorded in the judgment, a sentence of less than two years may be imposed. The petitioner submitted the response on the recommendations of the Law Commission. On 10/18.2.2000, this Court again requested the Law Commission to consider the comments of representative organisations (viz. SAKSHI, IFSHA and AIDWA).

18. The main question which requires consideration is whether by a process of judicial interpretation the provisions of Section 375 IPC can be so altered so as to include all forms of penetration such as penile/vaginal penetration, penile/oral penetration, penile/anal penetration, finger/vagina and finger/anal penetration and object/vaginal penetration within its ambit. Section 375 uses the expression "sexual intercourse" but the said expression has not been defined. The dictionary meaning of the word "sexual intercourse" is hetrosexual intercourse involving penetration of the vagina by the penis. The Indian Penal Code was drafted by the First Indian Law Commission of which Lord Mecaulay was the President. It was presented to the Legislative Council in 1856 and was passed on October 6, 1860. The Penal Code has undergone very few changes in the last more than 140 years. Except for clause sixthly of Section 375 regarding the age of the woman (which in view ! of Section 10 denotes a
female human being of any age) no major amendment has been made in the said provision. Sub-section (2) of Section 376 and Sections 376A to 376D were inserted by Criminal Law (Amendment) Act, 1983 but Sub-section (2) of Section 376 merely deals with special types of situations and provides for a minimum sentence of 10 years. It does not in any manner alter the definition of 'rape' as given in Section 375 IPC. Similarly, Section 354 which deals with assault or criminal force to woman with intent to outrage her modesty and Section 377 which deals with unnatural offences have not undergone any major amendment.

19. It is well settled principle that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support addition or substitution of words or which results in rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before ascribing to phrases used in it a meaning broader than that they would ordinarily bear. (Principles of Statutory Interpretation by Justice G.P. Singh p.58 and 751 Ninth Edition).! (contiued)