DECRIMINALIZATION OF LGBT

[Vol 2/ Issue 1/ May 2016] [ISSN 2394 -9295]

Kislay Raj

BBA.LL.B (H)

6th Semester

Amity Law School, Noida (U.P)

Email ID: kislayraj.95@gmail.com

ABSTRACT

The Times Square, New York, observed thousands of people do Yoga on the International Yoga Day on June 21, 2015. Yoga surely traces its roots back in India but has crossed the borders. This is the best example to show how culture travels across the world. Often we try to obstruct the wind that brings about the change. This is what we call as „moral policing‟. Moral Policing has been part and parcel of our society for a long time. But, recently there has been an outcry among the citizens to fight back this evil. It won‟t be wrong to call it a shield for the vigilante groups, who impose their perspectives and ideologies on others. They seem to believe themselves to be the guardians of the Indian Culture. The question which arises here is whether our country after 68 years of independence needs to morally direct the new generation. Lately, India has been very resistant to change which has pushed the question of legalising same sex marriage or even a mere recognition to them at the edge.

This paper deals with the detailed analysis of same sex marriages. Also, a special mention of the UNO‟s stand on the issue is made. The major hurdles India faces in decriminalization of the same sex marriage are also discussed.

Key words: LGBT, Decriminalization, UNO, Section 377, Moral Policing, NAZ Foundation

INTRODUCTION

It is important to know the literal meaning of a Lesbian, Gay, Bisexual and Transgender. According to Merriam Webster dictionary a lesbian is a woman who is sexually attracted to other women (a female homosexual)[1]; a gay is a person who is attracted to same sex (especially man)[2]; a bisexual are those who are sexually attracted to both men and women and a transgender are those people who have a sexual identity that is not clearly male or female[3].

A question often comes up is, whether these people are like other people who have liking only for opposite sex. The image created by certain vigilante groups who wage a war against these people, under the garb of moral policing and god‘s natural law, is that they are not normal. It is therefore important to know about their rights

STAND OF UNO ON LGBT

United Nations Organisations has made its stand crystal clear. It is well settled in human rights law that it is State who has the responsibility to protect the rights of LGBT people. Various human rights treaties had reiterated the same principle. The High Commissioner has stated, The principle of universality admits no exception. Human rights truly are the birth -right of all human beings [4]. It has recommended five steps by which the rights of the LGBT people can be protected and enforced. These are as follows:

ü Protect: LGBT people has to be protected from any kind of transphobic and homophobic violence. Sexual orientation and gender identity should be included as protected characteristics in hate crime laws.

ü Prevent: LGBT persons needs to be protected from any kind cruelty or inhuman treatment or physical or mental harassment. They should not be tortured their grievance should addressed. Law enforcing agency should be more vigilant and should be given proper training.

ü Repeal: The laws by which homosexuality has been criminalized should be repealed. There should be decriminalization of homosexuality. Sexual orientation and gender identity should not be the basis on which any person should be arrested or detained.

ü Prohibit: Any kind of discrimination either on the basis of sexual of their gender identity or sexual preference must not be promoted or rather it should be prohibited. LGBT people should be given proper

 

education and health facilities and no discrimination should made in providing other basic facilities to them.

Safeguard: Basic rights of the LGBT persons like freedom of expression, peaceful assembly and association should be safeguarded. If there is any restriction is put to these rights, it must be in consonance with the international laws and must not be discriminatory.

CRIMINALIZATION OF HOMOSEXUALIY

Those laws which makes homosexuality an offence violates or infringes individual‘s right to be free from discrimination which is apparently mentioned in Art. 2 of Universal Declaration of Human Rights and core international human rights treaties. These laws which are not strictly enforceable but are still an obligation under international human rights law. Here are the articles from international human right laws on the basis of which it can be said that states are under obligation of decriminalization of homosexuality.

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948[5]

Art.2 states that ―everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion national or social origin, property, birth, or other status .[6]

Art. 7 states that, ―all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination [7].

Art. 12 states that, ―no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, or to attacks upon his honour and reputation .[8]

INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS 1966[9]

 

Article 2(1) states that, ―each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status [10].

Further, Art. 9 states that ―everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one should be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law [11].

Art. 17 states that, no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation .[12] There are minimum of 76 countries in this blue planet where consensual relationship with the same sex is a criminal offence[13]. Human Rights Committee in the case Toonen v/s Australia[14] decided that it was undisputed that adult consensual sexual activity in private is covered by the concept of privacy‘ under Art. 17 of International covenant on Civil and Political Rights.[15] It didn‘t matter that Mr. Toonen, the author of the communication has never been prosecuted. The mere existence of the criminal law continuously and directly interferes with the author‘s privacy. [16] Thus the stand of UNO and Human Rights Committee is quite clear. They are in favour not treating anybody in inhuman way irrespective of sexual orientation and gender identity

INTERPRETATION OF SEC. 377 OF IPC

According to Kennedy A.J.C. ―Sec. 377 of IPC punishes certain persons who have carnal intercourse against the order of nature inter alia human beings…..[if the oral sex committed in this case is carnal intercourse], it is clearly against the order of nature, because the natural object of carnal intercourse is that there should be the possibility of conception of human beings, which in the case coitus per se is impossible. [17] The court used the reference to the Corpus Juris Secundum relating to sexual perversity[18] and abnormal sexual satisfaction as a criterion to determine the extent of Sec. 377. It is evident that the tests for attracting penal provisions have changed from the non -procreative[19] to imitative to sexual perversity.

The Sexual Offences Act, 1967, decriminalized homosexuality and acts of sodomy between consenting adults[20] under English Law. This was pursuant to a report made by Wolfenden Committee. The Committee had advised the Parliament to repeal the laws punishing homosexual acts. It is averred that no aspect of one‘s life may be said to be more private or intimate than the sexual relations he has, and thus violative of Art. 21 of the Indian Constitution. Since these are private, consensual sexual relationships,

 

preferences are prominently within a person‘s personality and thus lie at the core of his private space‘. It would be difficult to alienate such feelings.

There are two essentials[21] to attract Section 377[22] of IPC. They being:

1. Carnal[23] intercourse

2. Against the law of the nature.

It is evident that this section criminalizes the marriage of gays, lesbians and trans -genders. The view of the Hon‘ble High Court is expressed in the Naz Foundation vs. Government of NCT of Delhi[24]. It is a landmark judgement in which the High Court declared Section 377 as unconstitutional, to the extent that it criminalizes the consensual sexual relationship between adults in private being violative of Article 21[25], 14 and 15 of the Indian Constitution. The Supreme Court, however, overruled the judgement of Delhi High Court, holding that those who indulge in carnal intercourse in the ordinary course and those who indulge in carnal intercourse against the order of nature constitute different classes and the people falling under this category cannot claim that Section 377 suffers from the vice of arbitrariness and irrational classification[26]. What this section does is merely to define the particular offence and prescribe punishment for the same which can be awarded if the trial is conducted in accordance with the provisions of the Code of Criminal Procedure and other statutes of the same family the person is found guilty.[27] Therefore Section 377 IPC is not ultra vires Article 14 and 15 of the Constitution. It is also observed by the Supreme Court that the Court merely pronounced on the correctness of the view taken by the Delhi High Court on the Constitutionality of the section and found that the said section does not suffer from any infirmity constitutionally.[28] Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the Statute books or amend the same.[29]

Naz Foundation is a Non -Governmental Organization which filed a Public Interest Litigation on the said grounds. Their plea was that Section 377 of IPC should apply only to non -consensual penile non -vaginal sex and non -vaginal sex involving minors.

The NGO works in the field of HIV/AIDS Intervention and Prevention. They come across a lot of people while doing this noble job. Homosexuals are largely vulnerable to HIV/AIDS. The discriminatory attitude exhibited by state agencies towards gay community compelled the NGO to stand -up for the cause. The discriminatory attitude by the public and public authorities to this small minority group has resulted their abuse, harassment and assault.

The deep rooted thought that marriage is conjugal bliss to procreate children is wrong. The notion that nature supports only things that can give a fruitful result over time is wrongly practised. It is because of these that any non­procreative activity is termed as unnatural. It won‘t be wrong to say that by criminalising private, consensual same­sex conduct, Section 377 IPC serves as the weapon for police abuse; detaining and questioning, extortion, harassment, forced sex, payment of hush money; and perpetuates negative and discriminatory beliefs towards same­sex relations and sexuality minorities; which consequently drive the activities of gay men, as well as sexuality minorities underground thereby crippling HIV/AIDS prevention efforts.[30] Consequently, a vulnerable section of the society is created which is victimized at all points of time. The vigilante groups, holding the flags of culture, treat these people as sick people.

We have Yoga gurus calling such people to do Yoga and be healed. We have politicians who call it a disease and call it a result of westernization. It is important to mention here that psychologists and psychiatrists, no longer consider it to be a disease. Such likings and inclinations towards a particular sex are a part of a person‘s identity.

The works of various social activists and celebrities in order to promote awareness about such minorities is commendable. The perspectives of people are changing. The post of various jurists condemning the gay rights, are highly criticized over the social media. This shows the sea change of contemporary standards‘ in the Indian society.

LGBT is one group which has always been suppressed in the name of moral policing. People are not very keen to accept the members of LGBT community, though few recent judgements in India and U.S. have recognized their rights. In the case of National Legal Services Authority v/s UOI and Ors.

[31],it was held that transgender are third -gender and both state as well as central government were directed to give recognition to their gender identity such as male, female or as third -gender. U.S. apex court has also recognized same sex marriage and has made it legal. Thus in a progressive society we must act according to the situation and demand of the hour and no such policy should be continued which may hamper the growth of society, county and humanity.

CONCLUSION

 

The intolerance of the Indians towards LGBT has led to movement of many couples to migrate to western countries. Parliament is afraid to take up issue related to same sex marriage in India because of the stubborn approach of moral police‘. People are afraid to reveal their true identities in India, fearing the response towards them. The intolerance of people in India is so high that the risk of communal riots is present at every juncture. In a country where marriage to a different caste opposite gender person is legally permissible but communally impermissible, it will be hard to get an acceptance amongst citizens for LGBT Marriages. These communally active groups hinder the growth of citizens by assuming the guise of moral police. We need to have a more modernistic and reasonable approach on this burning topic and the Hon‘ble Supreme Court as well as the legislature should take a firm stand on it. Change is the law of nature and adaptability is the key to survival in any kind of change. It is high time, we must realize the new needs of the society.

REFERENCES

[1]Available at http://www.merriam -webster.com/dictionary/lesbian(last visited on 11/07/2015

[2]ibid

[3] ibid

[4] Addressed by United Nation High Commissioner for Human Rights Navi Pillay, 63rd session of the General Assembly, New York, 18/11/2008; See also http://arc -international.net/wp – content/uploads/2011/09/Advancing -SOGI -issues -HRC10.pdf(last visited on 28th , January, 2016)

[5] India voted in favour of this Universal Declaration of Human Rights, 1948 on 10/12/1948 [6]Article 2 of Universal Rights Declaration, 1948; See also: http://www.un.org/en/universal –

declaration -human -rights/(last visited on 28th January, 2016).

[7] Article 2 of Universal Rights Declaration, 1948; See also: http://www.un.org/en/universal – declaration -human -rights/(last visited on 28th January, 2016).

[8] Article 12 of Universal Rights Declaration, 1948; See also: http://www.un.org/en/universal – declaration -human -rights/(last visited on 28th January, 2016).

[9] India has ratified International covenant on Economic, Social and Cultural Rights, 1966 on 10/04/1979.

[10] Article 2 (1), International Covenant on Civil and Political Rights,1966., See also: http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx(last visited on 28th Janauray,2016) [11]Article 9, ibid

[12] Article 17, ibid

[13] State -sponsored homophobia: a world survey of laws criminalizing same sex sexual acts between consenting adults, International Lesbian, Gay, Bisexual, Transgender and Intersex Association (IGLA), Brussels, May 2011, p.9.

[14] Toneen v/s Australia, Human Rights Committee Communication No. 448/1992, CCPR/C/50/D/488/1992, 04/04/1994 at para 8.2.

[15] Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A

(XXI) of 16 December, 1966 entry into force on 23/03/1976. India ratified it on 10/04/ 1979. [16]Born Free and Equal available

athttp://www.ohchr.org/Documents/Publications/BornFreeAndEqualLowRes.pdf(last visited on 28th, January, 2016)

[17] Khanu vs. Emperor, AIR 1925 Sind 286.

[18] In the case of Fazal Rab Choudhary vs. State of Bihar, 1983 CriLJ 632(SC), the Court observed that Section 377 included sexual perversity‘.

[19] Earlier oral sex was not included under the purview of Section 377 but with due course of time, in Lohanna Vasantlal Devchand vs. State, AIR 1968 Guj 252, it was termed as unnatural offence.

[20] The age for consensual sex was made as 21 years.

[21] Cildline India Foundation vs. Allan John Waters, 2011 CrLJ 2305 (SC); (2011) 6SCC 2305 [22]Section. 377. ―Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with the imprisonment for life, or with imprisonment of either a description for a term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.”

[23]According to Concise Oxford dictionary, carnal means ―of body or flesh; worldly and ―sensual, sexual [24]2010 CrLJ 49(Del)

[25] Right to life incorporates the implicit right of citizens to have a right to privacy.

[26] Suresh Kumar Koushal and another vs. Naz Foundation and others, (2014) 1 SCC 1 [27]ibid

[28]ibid [29]ibid

[30] As mentioned in the plea of Naz Foundation.Ibid.

[31] Writ Petition (Civil) No. 604 of 2013