TIME TO SCRAP THE DRACONIAN LAW

Author’ s Name: Shiva Tiwari

Co-Author’s Name: Mukhtar Ahmad

VOLUME 1 ISSUE 1

JANUARY 2019

ISSN : Applied For…

“Openness may not completely disarm prejudice but it is a good place to start.”

ABSTRACT

Societal perspective toward same-sex relationships has multifarious over time and place. The right of homosexual people has not been sanctioned in our prestigious country. As one of the pretended section of Indian penal code i.e. section 377 of Indian Penal Court clearly states that this section criminalizes the voluntarily carnal intercourse against the order of nature done by any individual of same-sex, women and animals. The nature of the transgender in India is that the privilege of equity under the steady gaze of law and equivalent assurance of law is ensured under Article 14, Article 15, Article 19 and Article 21 of our constitution. Several religious groups, as well as their member in India, don’t support the decriminalization of this right. In Hindu narrative tradition also proclaimed those as a part of our society which is clearly demonstrated in Hindu sacred books like Mahabharata and several others book. These people are materialized in every spare of society. There wants and interest is being condemned in our society. Now they wanted to trounce public fear. The paper aims to enormously analyse the section 377 as well as the theory of various intellectual like Wolfenden Reports and Mill’s Harm Principle Certain case which are also been filled by the homosexual activist Naz foundation for decriminalizing homosexuality.

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INTRODUCTION

Draconian law i.e. section 377 which is currently prevailing in our society states that voluntarily having anal intercourse between same-sex as well as different sex as unnatural. This is a law established in the year 1860 when our country deals with criminal law i.e. Indian Penal Code. This law is established by the country which itself scarab this draconian law before 50 years by establishing the law sexual offence Act 1967.

HISTORY OF HOMOSEXUALITY

Homosexuality was frequent in ancient Greece and in many other countries. Their culture was influenced by Abrahamic religion, the law and the church established sodomy as a transgression against divine law or crime against nature. Many historical figures like Socrates, Lord Byron, Edward II and Michael Foucault termed gay or bisexual and regarded them as a risk of anarchistic introduction of the social construct of sexuality. Homosexual and transgender are also the part of pre-conquest civilization in Latin America. Homosexuality in Japan is known as Shudo or Nanshok. They were documented over one thousand years and had a connection with Buddhist Monastic life and Samurai tradition.

‘HOMOSEXUALITY NOT AN ILLNESS’

The Indian Psychiatric Society has said it is not a type of mental illness stating that there is no such scientific evidence by which their sexual orientation can be altered by any treatment and if any such act should be done then it would lead to low self-esteem and stigmatization of person. In fact, homosexuality was inborn and therefore not immoral, that it is not a disease, The I.P.C recognizes same sex as a normal variant of human sexuality.

WOLFENDEN REPORT 1957 ON HOMOSEXUALITY

The report recommended that “homosexual behaviour between a consenting adult in private should no longer be a criminal offence”. The main aim of report is to question the legitimacy of labelling homosexuality as a disease and to intervene in the private life of citizens or to seek to inform any particular pattern of behaviour. As a result of this report sexual offence act, 1967 was passed in England.

JOHN STUART MILL VIEW ON HOMOSEXUALITY

On Liberty, John Stuart Mill kicked of a crucial and extremely influential non-interference principle which precludes interference by government and society in those areas of life which only that solemnly concern individuals themselves. Mill writes, “The solely a part of the conduct of anyone for which he is amenable to society is that which concerns others[3]. In the part which merely concerns himself, his independence is, of right, absolute. [4]Thus, Mill suggests that the only conduct for which an individual is appropriately subject to sanction by either the state or society is conduct which is “other-affecting;” that which only affects himself is not appropriately subject to external penalization.

SEXUAL ORIENTATION

Sexual orientation refers to an inner feeling and behaviour of emotional, romantic and/ or sexual attractions to men, women or both sexes. Sexual orientation also refers to a person’s sense of identity based on those attractions, related behaviours and membership in a community of others who shows hose attractions[5]. Examine over several decades has demonstrated that sexual orientation ranges along a continuum, from exclusive attraction to the other sex to exclusive attraction to the same sex. However, sexual orientation is usually discussed in terms of three categories: heterosexual (having emotional, romantic or sexual attractions to member to members of others sex), gay/lesbian (having emotional, romantic or sexual attractions to members of one’s own sex) and bisexual (having emotional, romantic or sexual attractions to both men and women). This type of behaviours and attractions has been described in various cultures and nations throughout the world. In the United States of America, the most frequent labels are lesbians (women attracted to women) gay men (men attracted to men), and bisexual people (men or women attracted to both sexes). Although, some people may use different labels or none at all. Sexual orientation is distinct from other components of sex and gender, including biological sex (the anatomical, psychological sense of being male or female) and social gender role (the cultural norms that define feminine and masculine behaviour).

Thus, sexual orientation is closely tied to the intimate personal relationships that meet deeply felt needs for love, attachment and indemnity.[6]

HUMAN DIGNITY

As an extremely volatile principle, dignity is sometimes even invoked on opposite sides of the same debate, for instance with regard to abortion where it can refer to both the dignity of the woman and the unborn.[7]

In Germany, dignity is enshrined in article 1 of the Basic Law and is understood as “the most basic and foundational of rights.”[8] The European Court of Human Rights has relied on human dignity in interpreting human rights abuses[9]. Supreme Court of India’s view on Human Dignity; right to life includes the protection of health and strength of the worker is a minimum requirement to enable a person to live with human dignity.

The Council of Europe further relied on dignity with regard to human rights and biomedicine.[10]

The right of human dignity, development of personality, social protection, right to rest and leisure are fundamental rights to workman assured by the Charter of human rights, in the Preamble and Arts. 38 and 39 of the Constitution.[11]

INDIA

In August 2017, the Supreme Court, in its ruling that privacy is a fundamental right, gave hope to lesbian, gay, bisexual, and transgender (LGBT) people in India by stating that section 377 of India’s penal code, which effectively criminalizes same-sex relationships between consenting adults, had a chilling effect on “the unhindered fulfilment of one’s sexual orientation, as an element of privacy and dignity.”

NAZ FOUNDATION ROLE

Naz Foundation is one of the prestigious non-government organization established in the capital New Delhi with the prime objective as to work on HIV/AIDS and sexual health. This organization is formed by a social activist as well as human rights and animal rights activist Anjali Gopalan. She established this prestigious institution in the year 1994 at New Delhi. Kalyani Subramanyam is currently the director of this foundation. International netball federation is among one of his partners and Standard Chartered Bank is among the crucial funder. Chevalier de la Legion d`Honneur award by French Government in the year 2013. This is organization who fought the case to decriminalize the section 377 of Indian Penal Court so that the rights of people belonging to LGBTQ community should not be harmed.

Suresh Kumar Kaushal V. Naz foundation

The Naz Foundation filed a writ petition in the Delhi High Court Challenging The constitutional validity of section 377 of Indian Penal Court. This section penalizes unnatural intercourse even consensual intercourse between two adults of same-sex or even of the opposite sex indulging in penile non-vaginal sexual activities. The petitioner submitted that section 377 of Indian Penal Court encroached upon Articles 14, 15, 19 and 21 of the Constitution of India and also that the section ought not to criminalize consensual intercourse even non-vaginal. They put emphasis on the Indian constitution is a vibrant, living document and its wide insurance must be alterably translated to include new circumstances and tests.

The High Court applied the principle of Yogyakarta and worldwide patterns for security and nobility and held: “The sphere of privacy allows a person to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her own choice, and fulfil all legitimate goals that he/she may set. In the Indian Constitution, the right to live with dignity and the right to privacy are recognized as dimensions of Article 21. Section 377 of IPC denies a person’s dignity and criminalizes his or her core identity solely on account of his/her sexuality and thus violates article 21 of the Constitution. The Court reiterated that the term ‘personal liberty’ is of “the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of a man.”[12]

National Legal Services Authority v. Union of India[13]

The New Zealand court in Secretary, Department of Social Security v. “SRA”[14]–(as of raising a purely psychological question regarding gender determination which is one of the self-perception as well as a social question and also how society perceives the individual.

The court recognized that identity is one in every of the foremost elementary aspect of life that refers to a person`s intrinsic sense of being a male, feminine or transgender or transsexual person. They opined that guarantee to equality and fairness on the bottom of identity is increasing and gaining acceptance worldwide which it may also be applied in the Republic of India. Article 15 provides for social action for the advancement of minority and backward communities. The Transgenders are for long denied their rights beneath Article 15(2). They’re shunned from several public places together with the academic establishment, health care institutes, etc. the court control that TGS is entitled to social action as secure beneath Article15(4) and additionally to reservation within the matter of appointment. The state is certain to take social action to relinquish them due to illustration publicly services. The court any emphatic on the necessary for legal recognition of third or transgender identity and over that they belong to a definite socio-religious and cultural cluster and should be thought of as a “third gender”, excluding male and feminine. Justice K.S. Radhakrishnan, speaking on behalf of the court, over the judgement by holding that discrimination on the premise of the sexual orientation of identity includes any discrimination, exclusion, restriction or preference, that has the result of nullifying or transposing equality by the law of equal protection of law secure beneath our constitution. In lightweight of the aforesaid, it created numerous declaration and direction to the Centre and the state government Hijras, Hijras, Eunuchs are to be treated as “third gender”.

CANADA

In June 2017, Bill C-16 received royal assent amending the Canadian Human Rights Act to add gender identity and gender expression to the list of prohibited grounds of discrimination. The bill also amends the criminal code to extend protection against hate propaganda to any section of the public that is distinguished by gender identity or expression while deeming that any offence motivated by bias, prejudice, or hate based on gender identity and expression as an aggravating circumstance in sentencing.[16]

UNITED KINGDOM

The governor of Bermuda, a UK overseas territory, signed a law in February 2018 that strips same-sex couples of the right to marry. The law replaced same-sex marriage with the option of a domestic partnership, a status which will be open to both same and different-sex couples. Bermuda is the first country in the world to reverse its laws on same-sex marriage, after its Supreme Court ruled in May 2017 to allow same-sex couples to marry.[17]

UNITED NATIONS AND OTHER HUMAN BODIES – ON GENDER IDENTITY AND SEXUAL ORIENTATION

United Nations, in this regard, has been instrumental in advocating the protection and promotion of rights of sexual minorities, including transgender persons. The Universal Declaration of Human rights Article 6, 1948, and Article 16 of the International Covenant on Civil and Political Rights, 1966 (ICCPR) recognize that every human being has the vested right to live and this right shall be protected by law and that no one shall be arbitrarily denied of that right. International Commission of Jurists and the International Services for Human Rights on Behalf of a coalition of human rights organizations, took a project to develop asset of international legal principles on the solicitation of International Law to Human rights violations based on sexual orientation and sexual identity to bring greater clarity and coherence to state’s human rights obligations. A distinguished group of human rights experts has drafted, developed, discussed and reformed the principles in a meeting at Gadjah Mada University in Yogyakarta, on the Application of International Human Rights Law in relation to Sexual Orientation and gender identity the following Yogyakarta principles is unanimously adopted on the first decade of November 2006 in Indonesia.

YOGYAKARTA PRINCIPLES

Principle 1 which deals with rthe ight to the universal enjoyment of Human Rights, reads as follows: –

“All human being is born free and equal dignity and rights. Human beings of all sexual orientations and gender identities are entitled to the full enjoyment of all human rights.

States shall:

UN bodies, regional Human rights Bodies, National courts, government Commissions and the Commission of Human Rights, Council of Europe, etc. have endorsed the YOGYAKARTA PRINCIPLES and have considered them as an important principle for identifying the obligations of States to respect, protect and fulfill the Human Rights of all persons, regardless of their gender identity[18].

CONCLUSION

Finally, I would like to conclude that these people round the world face violence and inequality- and generally torture, even execution- because of United Nation. Sexual orientation and personal identity square measure an integral aspect of themselves and may be the near cause for discrimination or abuse. Human Rights Watch works for Lesbian, gay, bisexual and transgender people’s rights and with the activists representing a multiplicity of identities and problems. We have a tendency to document and expose abuses supported sexual orientation and personal identity worldwide, as well torture, killing and executions, arrests beneath unjust laws, unequal treatment, censorship, medical abuses, discrimination in health and jobs and housing, violence, abuses against kids, and denial of family rights and recognition. We have a tendency to advocate for laws and policies which will shield everyone`s dignity. We have a tendency to work for a world whoever all individuals will fancy their rights totally. While discussing several leading cases national as well as the international, various theory of intellectuals as well as report of United Nation we come to know that we are still far behind the other nation who themselves scrap the law in mid-20th century and we are still pretending that it is unnatural. We are living in a dilemma of justice we say that there must be an equal justice to all but we are here just snatching their rights as just by their behavior. Nowadays these people face a lot of humiliation in every corner of society so it’s my humble request to finish up this dilemma and led the equality to be furnished into the air.

[1] Author Law 2nd year, Aligarh Muslim University centre Murshidabad West Bengal,                                             phone number-9953630909

[2]  Co-Author Law 2nd year, Aligarh Muslim University centre Murshidabad West Bengal,

phone number-7586018292

[3]https://gould.usc.edu/why/students/orgs/ilj/assets/docs/15-2%20Strasser.pdf

[4] (JOHN STUART MILL, ON LIBERTY (Elizabeth Rapaport ed., Hackett Publishing Co, Inc. 1978) (1859)

[5] Sociology: A Global Perspective by joanFerrante

[6]http://www.apa.org/topics/lgbt/orientation.aspx (American Psychological Association) (last modified September 14 2018)

[7] Reva B. Siegel, Dignity and Sexuality: Claims on Dignity in Transnational Debates over Abortion and Same-Sex

Marriage, 10(2) Int’l J. Const. L. 355 (2012).

[8]Grundgesetzfür die Bundesrepublik Deutschland [Grundgesetz] [GG] [Basic Law], May 23, 1949, BGBL I (Ger.),

art. 1(1) (“Die Würde des Menschen istunantastbar. Siezuachten und zuschützenistVerpflichtungallerstaatlichenGewalt.”).

[9]Tyrer v. United Kingdom, App. No. 5856/72, Eur. Ct. H.R. (Apr. 25, 1978), para 32

[10] Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicines: Convention on Human Rights and Biomedicine, Council of Europe CETS No. 164 (1997)

[11]Air 1995 Supreme Court 922

[12]‎Civil Appeal No. 10972 OF 2013

[13]Writ Petition number-400 of 2013 in supreme court

[14](1993) 43 FCR 299)

[15]https://indiankanoon.org/doc/193543132/

[16] https://www.hrw.org/video-photos/interactive/2018/04/16/sexual-orientation-gender-identity-country-profiles

[17] https://www.hrw.org/video-photos/interactive/2018/04/16/sexual-orientation-gender-identity-country-profiles

[18]https://indiankanoon.org/doc/193543132/-[(2014) 5 SCC 438]

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