TRANSGENDER NEUTRALITY OF SEXUAL OFFENCES: AN AFTERMATH OF DECRIMINALIZATION OF SECTION 377
Dissertation submitted in part fulfilment for the requirement of the Degree of
LL.M.
Submitted by Supervised by
DIVYA ASWANI PROF. (DR.) MRINAL SATISH
National Law University Delhi (India) 2019 DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “Transgender Neutrality Of Sexual Offences: An Aftermath Of Decriminalization Of Section 377” submitted at National Law University, Delhi is the outcome of my own work carried out under the supervision of Prof. (Dr.) Mrinal Satish, Chairperson, Delhi Judicial Academy, Delhi.
I further declare that to the best of my knowledge, the dissertation does not contain any part of my work, which has been submitted for the award of any degree either in this University or in any other institution without proper citation.
Divya Aswani 40/LLM/18 National Law University, Place: New Delhi Delhi Date: 22nd May, 2019
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CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M. dissertation titled
“Transgender Neutrality Of Sexual Offences: An Aftermath
Of Decriminalization Of Section 377” submitted by Divya Aswani at National Law University, Delhi is a bona fide record of her original work carried out under my supervision.
Prof. (Dr.) Mrinal Satish Chairperson Place: New Delhi Delhi Judicial Academy, Date: 22nd May, 2019 New Delhi
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ACKNOWLEDGEMENT
I take this opportunity to extend my heartfelt gratitude and sincere regards to my supervisor, Prof. (Dr.) Mrinal Satish for his constant guidance, support and encouragement throughout the tenure of this dissertation. He has always been a great source of inspiration. His valuable suggestions and enlightening discussions have played an instrumental role in the successful completion of this dissertation. This idea would have not blossomed in absenteeism of his extensive supervision. I’m deeply indebted to him for taking out time from his busy schedule and entertaining my queries.
I further extend my gratitude to the institution, National Law University, Delhi, especially Prof. (Dr.) Ranbir Singh (Vice-Chancellor, National Law University, Delhi) and Prof. (Dr.) G.S. Bajpai (Registrar, National Law University, Delhi) for exhaustive infrastructure facilities required for the successful completion of this dissertation. I’d also like to thank the library staff of National Law University, Delhi for their co-operation and assistance.
A special vote of thanks to my family for their constant moral, emotional support and best wishes and standing by my side in all thick and thins. I also thank all my colleagues and friends who encouraged me and became a driving force for successful completion of this dissertation. Last but not the least; I’d like to thank God for invariable blessings.
Divya Aswani
40/LLM/18
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LIST OF STATUTES
SERIAL STATUTE NO. 1. THE BUGGERY ACT, 1533 2. THE CANADIAN HUMAN RIGHTS ACT, 1985 3. THE CONSTITUTION OF INDIA, 1950 4. THE CRIMINAL LAW (AMENDMENT) ACT, 2013 5. THE CRIMINAL LAW (AMENDMENT) ACT, 2018 6. THE GENDER MOTIVATED VIOLENCE, ACT, 2000 7. THE INDIAN PENAL CODE, 1860 8. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL LIBERTY, 1967 9. THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005 10. THE SEXUAL HARASSMENT OF WOMEN AT WORKPLACE (PREVENTION, PROHIBITION AND REDRESSAL) ACT, 2013 11. THE SEXUAL OFFENCES ACT, 1967 12. THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012 13. THE UNITED NATIONS CONVENTION AGAINST TORTURE AND OTHER CRUEL INHUMAN AND DEGRADING TREATMENT OR PUNISHMENT, 2008 14. THE UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 15. YOGYAKARTA PRINCIPLES ON THE APPLICATION OF INTERNATIONAL HUMAN RIGHTS LAW IN RELATION TO SEXUAL ORIENTATION AND GENDER IDENTITY, 2006
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LIST OF ACRONYMS & ABBREVIATION
AIDs Acquired Immune Deficiency Syndrome
AIR All India Reporter
Apr. April
Cri. LJ Criminal Law Journal cl. Clause
Cir. Circuit
Dr. Doctor
DB Division Bench
DEL Delhi
DLT Delhi Law Times
ECHR European Court of Human Rights
Feb. February
Govt. Government
Hen. Henry VIII
IPC Indian Penal Code, 1860
ILO International Labour Organisation
Lah. Lahore
LR Law Review
LGBTQA Lesbian Gay Bisexual Transgender Queer Asexual
Mad. Madras
Mar. March
NALSA National Legal Services Authority
No. Number
Ors. Others
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P. Page
Para Paragraph
POCSO The Protection of Children from Sexual Offences Act, 2012
Prof. Professor
SA South Africa
Sect. Sector
SCC Supreme Court Cases
SCR Supreme Court Reporter
STDs Sexually Transmitted Disease
& And
UN United Nation
U.S. United States v. Versus
WHO World Health Organisation
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LIST OF CASES
1. Anamika v. Union of India, (17.12.2018- DELHC).
2. Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad).
3. Caleb Orozco v. Attorney General of Belize, Claim no. 668/2010 (2016).
4. DP Minwalla v. Emperor, AIR 1935 Sind 78.
5. Delwin Vriend & ors. v. Her Majesty the Queen in Right of Alberta & ors.,
(1998) 1 SCR 493.
6. Dudgeon v. The United Kingdom (1982) 4 ECHR 149.
7. E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3.
8. Egan v. Canada, (1995) 2 SCR 513.
9. Euan Sutherland v. United Kingdom, (2001) ECHR 234.
10. Government v. Bapoji Bhatt (1884) 7 Mysore LR 280.
11. K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809.
12. Khanu v. Emperor AIR 1925 Sind 286.
13. Khanu v. Emperor AIR 1934 Lah. 261.
14. Kimberly Hively v. Ivy Tech Community College of Indiana, 830 F.3d 698
(7th Cir. 2016).
15. Lawrence v. Texas, 539 U.S. 558, 562 (2003).
16. M v. H, (1999) 2 SCR 3.
17. Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
18. National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999
(1) SA 6 (CC).
19. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.
20. Navej Singh Johar v. Union of India, (2018) 1 SCC 791.
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21. Naz Foundation v. Govt. Of NCT of Delhi (2009) 160 DLT 277 (DB).
22. Nicholas Toonen v. Australia Communication, No. 488/1992, UN Doc
CCPR/C/50/D/488/1992 (1994).
23. Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576
US (2015).
24. Price Waterhouse v. Hopkins, 7490 U.S. 228, 231 (1989).
25. Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984).
26. S. v. Kampher, 1997 (4) SA 460 (C).
27. Schwenk v. Hartford, 204 F. 3d 1187 (9th Cir. 2000).
28. State v. Sheodayal, AIR 1956 Nagpur 8
29. Sudesh Jhaku v. K C Jhaku, 1998 Cri LJ 2428.
30. Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.
31. United States v. Smith, 574 F.2d 988 (9th Cir. 1978).
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TABLE OF CONTENTS
TITLE Page Number DECLARATION BY THE CANDIDATE I CERTIFICATE OF SUPERVISOR II ACKNOWLEDGMENT III LIST OF ACRONYMS AND ABBREVIATIONS IV TABLE OF STATUTES V-VI LIST OF CASES VII-VIII CHAPTER-I 1-7 INTRODUCTION 1 1.1 INCIDENT THAT TRIGGERED THE TRANS 3 ACTIVISM IN INDIA 3 1.2 STATEMENT OF RESEARCH PROBLEM 4 1.3 OBJECTIVES 4 1.4 HYPOTHESIS 5 1.5 RESEARCH QUESTIONS 5 1.6 RESEARCH METHODOLOGY 6 1.7 SCHEME OF THE STUDY CHAPTER – II 8-14 SOCIAL EXCLUSION AND VULNERABILITY OF 8 LGBTQA CHAPTER – III 15-23 INTERFACE OF LGBTQA WITH THE LEGAL 15 SYSTEMS
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24-31 CHAPTER – IV CRIMINAL JUSTICE SYSTEM IN INDIA AND 24 IMPACT OF JUDICIARY ON LGBTQA 32-39 CHAPTER – V SECTION 377 AND ITS DECRIMINALIZATION 32 CHAPTER – VI 40-51 NEED FOR TRANSGENDER INCLUSIVE SEXUAL 40 OFFENCES CHAPTER – VII 52-54 CONCLUSION 52 BIBLIOGRAPHY 55-60 Books 55 Statutes 55 Reports 56 Journals/Articles 56 Websites 60
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CHAPTER - I INTRODUCTION
“It was seven or eight years back when I was in Kolkata during Durga Puja. I was with four of my transgender friends and we were standing in the line to attend the ceremony when seven to eight guys approached us and called us out of the line. We went towards them not suspecting what they wanted. They then started assaulting us by touching in different parts of our bodies forcefully. This happened in public, we started screaming but no one came to help us.”1
Individual autonomy, equality and liberty sans discrimination and dignified recognition of identity and privacy are the overarching ideals that constitute the four cardinal pillars of our constitution laying the bedrock of fundamental rights and secluding certain Sections of the society, isolating them from the social mainstream and forcing them to live in the shackles of prejudiced notions, dogmatic social norms, parochial mindset, rigid stereotypes and blinkered perceptions.2
In the hetero-normative societies, the male-female dichotomy has created havoc for the transgender community. The transgender category is an Umbrella term to include those who transgress the binary notions of gender. According to Sincy Wilson, transgender people can be identified as individuals of any sex or age who differ from the stereotypical definition of men and women in terms of behaviour, characteristics and appearance. 3 The coining of the term was resultant of the activism in the United States and the Western Europe.4 Transgender can be distinguished from the homosexuals; while the former is directly correlated to the gender identity of the individual the latter is associated with the sensual orientation of an individual.5 The
1Amritta Sarkar, Action for World Solidarity, Telangana, 2018 quoted in Gender Neutral Rape Laws: What About the Transgender?, The Invisible Lawyer, February 7, 2018. 2Navtej Singh Johar v. Union of India, (2018) 1 SCC 791. 3 Sincy Wilson and Hashim M Kabeer, Transgender Rights Protection in India – An Analysis, ARTS AND EDUCATION INTERNATIONAL RESEARCH JOURNAL, 18, 18-19 (2017). 4Aniruddha Dutta, Contradictory Tendencies: The Supreme Court’s NALSA Judgment on Transgender Recognition and Rights, JOURNAL OF INDIAN LAW AND SOCIETY (May 13, 2019, 23:53 PM), http://docs.manupatra.in/newsline/articles/Upload/FC172F97-B266-4AA2-8739-0BDB7E2D966C.pdf 5 Wilson and Kabeer, supra note 3, at 19.
1 | P a g e community historically traces its existence in all classes, cultures and races however, their gender identify, sexual preferences and conduct were reserved at the margin of the society and were meant to be kept as secret from their families, the community at large and the governmental authorities owing to the fear of persecution and criminal prosecution attached to it.6 According to Puri, they can be identified as victims of the wide-spread institutionally tolerated discrimination owing to their distinct sexual preferences.7 They have a sense of societal and legal exclusion and fear of being different from the majority and scum to the Victorian ideologies and heterosexual monogamy.8
The vulnerable and marginalised positioning of community has a cascading effect on their fundamental and human rights in India.9 The sexual minorities are often met with discriminatory actions and hostile behaviour on the pretext that they are anti- religious, anti-tradition, anti-social or immoral and unnatural creatures resulting in their invisibility and silence.10 The community is deprived of the most basic human and fundamental rights enshrined under the constitution and requisite to ensure dignified living of the community irrespective of their sexual orientation.11 The issues faced by the sexual minorities are in direct association with the institutional ideologies and socially oppressive structures of capitalism, patriarchy, caste system and religious fundamentalism.12
This dissertation aims to look at the sexual exploitation and sexual offences committed against the LGBTQA community owing to their distinct sexual preferences and is this a rationale enough for non-application of sexual offences, provided for under the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’), in favour of this community which presently is gender-particularistic provision specifically for women.
6 Aniruddha Dutta, supra note 4 at 227-228. 7 Jyoti Puri, Sexualizing the State: Sodomy, Civil Liberties and the Indian Penal Code, ZUBAAN BOOKS (Apr. 01, 2019), file:///C:/Users/new/Downloads/Sexualizing_the_State_Sodomy_Civil_Liber.pdf. 8Suneeta Singh, Sangita Dasgupta, Pallav Partaker, Vijay Hire math, Miriam Clawson and Vishay Chakra, Charting a Programmatic Roadmap for Sexual Minority Groups in India, SOUTH ASIA HUMAN DEVELOPMENT SECTOR REPORT NO. 55, WORLD BANK (May 13, 2019), http://documents.worldbank.org/curated/en/487301468268159125/Charting-a-programmatic-roadmap- for-sexual-minority-groups-in-India. 9 National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 10 Singh, Dasgupta, Patankar, Hiremath, Claeson and Chhabra, supra note 8, at 8. 11 Id. 12 Id. at 5.
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1.1 Incident that triggered the trans activism in India
The AIDS Bhedbhav Virodhi Andolan published a report in 199113 revealing the atrocities faced by the transgender community in the nature of sexual violence, exploitation, assault and extortion under the garb of Section 377 of the IPC recommending that the said law should be repealed.14 Following this in 1994, the Medical officers in Tihar jail concluded that 90% of the inmates in the prison indulged in consensual homosexual activity and recommended facilitation of condoms to prevent STDs. However, Kiran Bedi, inspector general of Tihar Jail refused the facilitation of condoms on the pretext that it will promote homosexuality and consensual sexual conduct amongst homosexual which is punishable under Section 377 IPC.15 This led to hue and cry and for the first time the community and transgender activists came out of the closet to support the rights of the LGBTQA community. A writ petition was filed by ABVA for declaration of Section 377 as unconstitutional on the anvil of Article 14, 15, 19 and 21 of the constitution and calling on the judiciary to repeal the said provision of law.
Per contra, it was contested that the Section 377 IPC should not be repealed as it keeps intact the principles of legal moralism and upholds the majoritarian morality and its declaration as ultra vires the constitution will be against public morality, public order and decency. Even though the petition was dismissed in 2001 on technical grounds it laid the foundation for trans activism in India and across South Asia for the recognition of their gender identity and substantial rights associated with it.
1.2 Statement of Research Problem
The Constitution of India lays down a non-discriminatory approach towards its citizenry regardless of the gender identity and the sexual orientation of the individual and guarantees equality of law and equal protection of law. The present study intends to analyse the positioning of the LGBTQA community in India and simultaneously
13 AIDS Bhedbhav Virodhi Andolan, Less Than Gay: A Citizens’ Report on The Status of Homosexuality in India, ABVA, (May 12, 2019, 21:41 PM), https://docs.google.com/file/d/0BwDlipuQ0I6ZMXVmNWk0ajdqWEU/edit 14 Id. 15 Aniruddha Dutta, supra note 4 at 230.
3 | P a g e draw a comparison between other jurisdictions. With the help of doctrinal method, the proposed study attempts to establish the need for transgender inclusiveness of sexual offences under criminal law in India to further the human rights approach and guarantee constitutional protection of the fundamental rights to the community. The study strives to lay emphasis on the categorization of non-consensual sexual offences as applicable to the community rather than bringing it under the umbrella of unnatural offences in entirety. The study further examines and reflects on the relevant constitutional and criminal law provisions, studies the judgement of the courts, reviews the systematic studies previously conducted and the principles laid down in international covenants to strengthen the argument of transgender neutrality of sexual offences.
1.3 Objectives 1. To trace the history and analyse the vulnerability and marginalization of the transgender community at the instance of the governmental institutions and agencies. 2. To identify the positioning of the transgender community within the society and the Indian Criminal Justice System. 3. To analyse the interplay of the transgender community within the legal system in India and in other jurisdictions. 4. To recognise the need for transgender inclusiveness of sexual offences to safeguard the sexual rights of the transgender community otherwise susceptible to exploitation and harassment.
1.4 Hypothesis 1. The transgender community, like women, is susceptible to sexual offences like outraging modesty (Section 354), sexual harassment (Section 354A), Disrobing (Section 354B), Voyeurism (Section 354C), Stalking (Section 354D), Rape and aggravated forms of rape (Section 376, 376 A-E) and insult to their modesty (Section 509). 2. All cases of non-consensual carnal intercourse against the order of the nature cannot be deemed to be unnatural offence under Section 377 and have to be categorised as distinct sexual offences as is done for women and therefore
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requires transgender neutrality of sexual offences under Indian Penal Code, 1860 so as to include the LGBTQA community.
1.5 Research Questions 1. Whether the LGBTQA community is a vulnerable class facing social exclusion at the instance of governmental institutions and the members of the society? 2. Whether the LGBTQA community, like women, is susceptible to the offence of outraging modesty, sexual harassment, voyeurism, disrobing, stalking, rape, etc.? 3. Whether non-categorization and non-application of sexual offences in favour of the LGBTQA community is in violation of Article 14, 15 and 21 of the Constitution? 4. Whether non-consensual sexual conduct under Section 377 is an effective alternative to punish offences in the nature of outraging modesty, sexual harassment, voyeurism, disrobing, stalking, rape, etc. committed against the LGBTQA community? 5. Whether decriminalization of Section 377 calls for transgender neutrality of sexual offences so as to include the LGBTQA community within its purview?
1.6 Research Methodology
The dissertation has adhered to the qualitative method and reach to the findings by analysing the literature available in the field of study. The researcher has adopted the deductive approach also called the top-bottom approach. The researcher tends to test the hypothesis after analysis the gravity of sexual offences committed against the LGBTQA community by examining online and offline sources including opinion of eminent scholars, books, journals, articles, committee reports, judicial decisions. Thereafter, the sources have been analysed and the dissertation has built upon the concept and highlighted the linkage between the concepts like the construction of power dynamics and positioning of sexual minorities, the LGBTQA Community, in the society.
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1.7 Scheme of the Study
Chapter I of the dissertation titled “INTRODUCTION” tries to identify the area of study and lays down the aims and objectives behind the research study and introduces the contemporary positioning of the LGBTQA community as being the oppressed and vulnerable class in the society even after its historical presence for centuries and followed by the second chapter.
Chapter II of the dissertation titled “SOCIAL EXCLUSION AND VULNERABILITY OF THE LGBTQA” aims to establish that the community belongs to the marginalised sect. of the society, deprived of basic human rights and fundamental rights for ages through systemic review of previous conducted studies. It further asserts that there is a need to protect the sexual rights of the community and induce non-discriminatory practises on the basis of sexual preferences and gender identity to encourage them to come out of the closet. It is then followed by the third chapter.
Chapter III of the dissertation titled “INTERFACE OF LGBTQA WITH LEGAL SYSTEMS” wherein the positioning of the community in terms of the civil and criminal rights they have in India and other jurisdictions including Canada, South Africa, United States, Armenia, Australia, etc. is ascertained. Factors like legality of homosexuality, protection from sexual offences against the LGBTQA community, etc. are determined. The chapter is then followed by chapter four.
Chapter IV of the dissertation titled “CRIMINAL JUSTICE SYSTEM IN INDIA AND IMPACT OF JUDICIARY ON THE LGBTQA” aims to trace back the history of trans activism in India and development of legal and constitutional rights of the community in addition to their recognition through the NALSA judgment is discussed. The objective is to analyse the development, both social and legal, in the stature of the LGBTQA community and the role of judiciary in such elevation. The chapter is then followed by the chapter five.
Chapter V of the dissertation titled “SECTION 377 AND ITS DECRIMINALIZATION” aims to analyse the jurisprudential essence of this 158 year old Section based on the Victorian ideologies and its implications in the contemporary legal atmosphere. The community even though is recognised as a distinct third gender
6 | P a g e exiting in the society after the NALSA decision and they have neither gained social liberty or the legal liberty in terms of choosing their sexual partners. The law under Section 377 IPC has become a tool of persecution and criminal prosecution, especially at the instance of the state machineries like the police agency, etc. The chapter then acknowledges the decriminalization of Section 377 IPC, through the Navtej Singh Johar decision of the Supreme Court, to the extent of consensual carnal intercourse/sexual conduct between two adults in private without any discrimination premised on the sexual orientation and/or gender identity. However, the chapter criticises the failure on part of the court to equate non-consensual instances of carnal intercourse with sexual assault as provided for under Section 375 IPC and identifies the need to amend the criminal law with respect to sexual offences and make it transgender inclusive, presently exclusive to women, owing to the vulnerability of the community. This section is followed by chapter six of the dissertation.
Chapter VI of the dissertation titled “NEED FOR TRANSGENDER NEUTRALITY OF SEXUAL OFFENCES” is the penultimate chapter of the dissertation and one of the most crucial ones. The chapter posses arguments proposing transgender neutrality of sexual offences under the IPC and under The Sexual Harassment of Women at Workplace (Prevention, Prohibition And Redressal) Act, 2013 and The Protection of Women from Domestic Violence Act, 2005. This chapter is followed by conclusion.
Chapter VII of the dissertation titled “CONCLUSION” illustrates the justification of the hypothesis in affirmation and reasserts the need for transgender neutrality of sexual offences so as to extend the protection to the transgender community and secure for them both social and legal liberty and a dignified life to co-exist in the society and break hetero-normative societal standards prevailing for centuries.
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CHAPTER - II
SOCIAL EXCLUSION AND VULNERABILITY OF LGBTQA
“We must stand on our own feet and fight as best as we can for our rights. So carry on you agitation and organise your forces. Power and prestige will come to you through struggle”
Contemporarily and historically, transgenderism prevailed across the globe including in the Native American culture1, Indian culture2 and Greco-Roman culture.3 In addition to this, even many deities sported a blend of feminine and masculine characteristics or were capable of shifting from one gender to the other.4 Homosexuality was portrayed and practiced unreservedly in Indian Literature and Art for over 2000 years.5 In fact, most of the slaves and nobles during the legacy of Muslim rule in India were eunuchs.6
The advent of the colonial rule in India, embarked a drastic change whereby Lord Macaulay included the Victorian draconian law7 under Section 377 of the Indian Penal Code, 1860. In accordance with this law, any carnal intercourse against the order of the nature was made punishable with imprisonment.8 Even though no mention was made specifically to homosexuality, it was deemed to be a provision to
1 Two Spirit People. 2 Men that choose to worship the feminine aspect of the divine through voluntary castration or because they were born intersexed. 3 The god Hermaphrodites, son of Hermes and Aphrodite; and the acceptance of the cross-dressing behaviour of Hercules and Achilles. 4 Dionysus; Lord Vishnu the male counterpart and Goddess Mohini, the female counterpart of the same Deity. 5 Geetanjali Misra, Decriminalizing Homosexuality in India, TAYLOR AND FRANCIS GROUP (May 13, 2019, 14:49 PM), https://www.jstor.org/stable/40647442. 6 Imaduddin Rayhan, the Chief Minister under Sultan Balban, and Kafur Hazardinari, the Army Commander and Vice Regent of Allauddin Khilji, were eunuchs. 7 The Buggery Act, 1533, No. 25 Hen. 8 c. 6, 1533. 8 Unnatural offences.—whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either 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.
8 | P a g e avert homosexual relationships.9 The dignified living of sexual minorities was resisted both by the state and the society at large leading to their exclusion from the society punishing them to marginalised ends and making their existence vulnerable.
Social exclusion refers to an accumulation of convergent processes along with successive ruptures coming from the society, economy and politics10 leading to gradual distancing of the person, groups or community concerned and giving inferior positioning in terms of resources, central power and the prevailing values.11 Depriving a particular Section of the society from asserting their rights and to participate in the political, social and economical processes is equivalent to social exclusion at the behest of the society and the state.12 In essence, it is the denial of basic rights and dignified status to a Section owing to the prevailing norms in the society. It is driven by the lopsided power dynamics at the social, economical, political and cultural interface.13 The social aspects include lack of access to education, social protection, legal and health services, etc.; economical aspects include hindrance in employment opportunities, limited access to essential commodities and constrained livelihood, etc.; cultural aspects include the traditional practises of exclusion, pre-set norms of their lifestyles, etc.; and lastly the political exclusions include deprivation of their recognition as a third gender, the fundamental and citizenry rights, human rights, non- inclusion in debates and discussions specifically for their rights, etc. This explicit relationship between the exclusions and their rights showcases discrimination solely on the basis of gender orientation of this community. They are excluded from the majority community and the minority community, usually based on linguistic, cultural or religious minorities, and thereby go unrecognised.
9Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite Responses to the ‘Inclusive’ Approach, NUJS LAW REVIEW (May 13, 2019, 10:19 AM), http://nujslawreview.org/wp- content/uploads/2016/12/rukmini-sen.pdf. 10Jordi Estivill, Concepts and Strategies for Combating Social Exclusion: An Overview, INTERNATIONAL LABOUR OFFICE (Mar. 29, 2019, 20:08 PM), http://www.ilo.org/public/english/protection/socsec/step/download/96p1.pdf. 11 Id. at 131. 12Jo Beall and Laure-Helene Piron, Department for International Development - Social Exclusion Review, OVERSEAS DEVELOPMENT INSTITUTE (Mar. 23, 2019, 07:55AM), https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications-opinion-files/2301.pdf. 13 Jennie Popay, Sarah Escorel, Mario Hernandez, Heidi Johnston, Jane Mathieson and Laetitia Rispel, Understanding and Tracking Social Exclusion, WORLD HEALTH ORGANIZATION (May 7, 2019, 14:53 PM), https://www.who.int/social_determinants/knowledge_networks/final_reports/sekn_final%20report_042 008.pdf?ua=1
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Every society is deemed to be heterogeneous comprising of only two genders – the male and the female and the third gender often remains unrecognised. This paves a path for identity crisis amongst the minority community. Owing to either the societal pressure or for the purposes of legal formalities they have to either opt out of the two genders. They don’t connect with the gender; they are confused about their identity and often feel trapped in their own bodies in the dichotomous gendered society. These sexual minorities are more often than not are publically humiliated and ridiculed owing to their sexual orientation not just but the general public but also by the police agencies owing to their institutional ideologies.
In India, this struggle of deprivation is also drawn from the governmental policy framework recognizing only two sexes in according right to vote, marry, claim property, a formal identity through passport or in other governmental identities. Their inability to procure subsidies for food, health, employment or education further adds to their misery forcing them to either engage in sex work or beggary, thereby again exposing them to violence and vulnerability at the instance of the law enforcement agencies. It is significant to take note that an individual cannot replace his/her sexual orientation or identity in order to adhere to the normative standards of the society.
Shakespeare once said “What’s in a name?” which in the present sense can be understood that for the purposes of identification name may be a convenient concept but the characteristical essence is the core of the identity and not the name per se. The Supreme Court in 2014 gave legitimate recognition to the third gender furthering their fundamental and constitutional rights.14 The court recognised the International conventions15 and the Yogyakarta principles relating to sexual orientation and gender identity16 to further the recognition of the rights of the third gender. However, it is yet to be unfolded whether this recognition has remained on paper or has been accepted by the society at large. Mere self-identity formalization neither results in freedom to the LGBTQA from the shackles of the oppressive patriarchy nor does it safeguard
14NALSA, supra Chapter I at 9. 15International Covenant on Civil and Political Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-20, 6 I.L.M. 368 (1967), 999 U.N.T.S. 171; Universal Declaration of Human Rights, G.A. Res. 217A (III),U.N. Doc. A/810 at 71 (1948). 16Yogyakarta Principles: Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity, INTERNATIONAL COMMISSION OF JURISTS (May 15, 2019, 17:11 PM), https://www.refworld.org/docid/48244e602.html.
10 | P a g e them from the traditional institutional ideologies of the law enforcement agencies and the society.
The Supreme Court has recognised the fact that the sexual minorities are the marginalised and vulnerable Sections of the society. Justice Sikri reiterating the theory of justice as fairness17 with the conception of distributive justice18 derived the jurisprudential essence to do justice to the vulnerable community in the society of which the third gender is part and parcel19 and the aftermath of this is the recognition of rights as are available to other marginalised Sections of the society.
Additionally, the report by the United Nations Human Rights Council stated that transphobic and homophobic violence either physical (including rape, sexual violence, trafficking and kidnapping, etc.) or psychological (intimidation, coercion, discrimination and exclusion, etc.) are recorded in all regions around the world.20 In essence, it is a gender-based violence against individuals defying the normative standards prevailing in the society whereby sexuality is stigmatized and homosexuality is discredited as against heterosexuality. 21
Sexual violence against this marginalized sect. can be categorised as sexual assault, rape, sexual abuse, sexual aggression, sexual harassment, sexual victimization, other sexual offences like voyeurism, stalking, disrobing, acid attacks, etc. wherein the individual belonging to this vulnerable group is forced to indulge into unwanted and non-consensual sexual activity. And it will be wrong to cover all the non-consensual offences against the third gender under the garb of sodomy as provided for under the Indian legal framework. Instead, it is important to classify distinct sexual offences that can be committed against the third gender, as it is in case of women, to further protect the constitutional rights of the LGBTQA Community.
17 John Rawls, Justice as Fairness, THE PHILOSOPHICAL REVIEW (May 11, 2019, 18:16 PM), http://links.jstor.org/sici?sici=0031-8108%28195804%2967%3A2%3C164%3AJAF%3E2.0.CO%3B2- Y. 18Amartya Sen, The Idea of Justice, MASS: BELKNAP PRESS OF HARVARD UNIVERSITY PRESS, CAMBRIDGE (May 11, 2019, 20:19 PM), https://dutraeconomicus.files.wordpress.com/2014/02/amartya-sen-the-idea-of-justice-2009.pdf. 19 Supra note 14 at 129. 20 Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and Gender Identity: A Systematic Review, BULLETIN OF WORLD HEALTH ORGANIZATION (May 09, 2019, 06:47 AM), http://dx.doi.org/10.2471/BLT.17.197251. 21 United Nations Human Rights Council, Discriminatory Laws and Practices and Acts of Violence Against Individuals Based on their Sexual Orientation and Gender Identity, HRC/19/41/2011.
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It is also imperative to recognise the rights of this Section which is otherwise at the risk of developing poignant distress syndrome owing to stigmatization and discrimination at the behest of the populace.22 They are more susceptible to verbal, physical and sexual abuse which is manifested in their behaviour, anxiety, symptoms of depression, suicidal ideation23 and psychological disturbances.24 A study in Denmark reflected that the same-sex partners are more prone to suicidal tendencies.25 In addition to this, the sexual minorities are more prone to HIV, sexually transmitted disease, cancer causing infections and other mental conditions owing to their sexual orientation resulting in what is known as Syndemic Vulnerability.26
The World Health Organization conducted 57 empirical studies in totality to study the prevalence of sexual violence motivated by perceptions of gender identity and sexual orientation and reached to a conclusion that there is high prevalence of sexual violence experienced by gender minorities and particularly, the transgender which may be explained by their involvement in sex work.27 Nevertheless, the study was silent on the fact that whether this sexual violence against the sexual minority is more as compared to the rest of the populace.28 However, research has shown that the homosexuals are 1.47 times more likely to be victimized as against the heterosexuals.29
22Mark L. Hatzenbuehler, Katie A. McLaughlin, Susan Nolen-Hoeksema, Emotion Regulation and Internalizing Symptoms in a Longitudinal Study of Sexual Minority and Heterosexual Adolescents, THE JOURNAL OF CHILD PSYCHOLOGY AND PSYCHIATRY, WILEY ONLINE LIBRARY (May 09, 2019, 11:37 AM), https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1469-7610.2008.01924.x. 23 Ann P. Haas, Philip L. Rodgers, and Jody L. Herman, Suicide Attempts Among Transgender and Gender-Nonconforming Adults, AMERICAN FOUNDATION FOR SUICIDE PREVENTION AND THE WILLIAMS INSTITUTE (May 09, 2019, 12:01 PM), http://williamsinstitute.law.ucla.edu/wp- content/uploads/AFSP-Williams-Suicide-Report-Final.pdf. 24 Harvey J. Makadon, Ending LGBT Invisibility in Health Case: The First Step in Ensuring Equitable Care, CLEVELAND CLINIC JOURNAL OF MEDICINE (May 09, 2019, 13:39 PM), 10.3949/ccjm.78gr.10006. 25 Robin M. Mathy, Susan D. Cochran, Jorn Olsen, Vickie M. Mays, The Association Between Relationship Markers of Sexual Orientation and Suicide: Denmark, SOCIAL PSYCHIATRY AND PSYCHIATRIC EPIDEMIOLOGY (May 10, 2019, 15:17 PM), 10.1007/s00127-009-0177-3. 26 Sarah S. Willen, Michael Knipper, Cesar E Abadía-Barrero, Nadav Davidovitch, Syndemic Vulnerability and The Right to Health, THE LANCET JOURNAL (May 06, 2019, 17:53 PM), http://dx.doi.org/10.1016/S0140-6736(17)30261-1. 27 Don Operario, Toho Soma, Kristen Underhill, Sex Work and HIV Status among Transgender Women: Systematic Review and Meta-Analysis, JOURNAL OF ACQUIRED IMMUNE DEFICIENCY SYNDROMES (May 06, 16:09 PM), 10.1097/QAI.0b013e31816e3971. 28 Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and Gender Identity: A Systematic Review, BULLETIN OF WORLD HEALTH ORGANIZATION (May 09, 2019, 18:12 PM), https://www.who.int/bulletin/volumes/96/1/17-197251/en/. 29 Id.
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Another study reflected abuse of power by the persons in position of authority extending to sexual assault. As per this study, 15% of the transgender individuals reported sexual assault in jail or while in police custody.30 5-9% of transgender were sexually assaulted by police officers31 and another 10% of the transgender populace was sexually assaulted by the health care professionals.32
As far as the Adult Sexual Assault is concerned, a systematic review of 87 studies was undertaken and it was reflected that the certain Section of population like the gay and bisexual men reportedly faced higher adult sexual assault as against the men otherwise in the general population.33 Another systematic review of 75 studies in the United States reported the life time sexual assault victimization, adult sexual assault, child sexual assault and intimate partner sexual assault among the gay, lesbian or bisexuals.34 Another study conducted in 2009 reflected that sexual violence against the transgender community starts at an early stage in life and throughout their life they are at high risk of multiple kinds of sexual violence.35
In India, Telangana Hijra Transgender Samiti, a non –governmental organization in a telephonic conversation stated that since June 2018 to December 2018, they reported approximately 40 cases to the local police who either refused to register the FIR or misbehaved with the victim belonging to the LGBTQA community. Another non- governmental organisation Sangama in Bangalore stated that while they were dealing with sexuality minorities they was repressed by the police; the police barred people
30 Jamie M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling, Injustice at Every Turn: A Report of the National Transgender Discrimination Survey, NATIONAL CENTER FOR TRANSGENDER EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE (May 06, 2019, 18:49 PM), https://www.thetaskforce.org/injustice-every-turn-report-national-transgender- discrimination-survey/. 31National Coalition of Anti-Violence Programs, Hate Violence Against Lesbian, Gay, Bisexual, and Transgender People in the United States, NATIONAL COALITION OF ANTI-VIOLENCE PROGRAMS (May 09, 2019, 22:07 PM), https://avp.org/wp-content/uploads/2017/04/2011_NCAVP_HV_Reports.pdf 32 Grant, Mottet, Tanis, Harrison, Herman, and Keisling, supra note 30 at 31. 33Zoë D. Peterson, Emily K. Voller, Melissa A. Polusny, Maureen Murdoch, Prevalence and Consequences of Adult Sexual Assault of Men: Review of Empirical Findings and State of The Literature, CLINICAL PSYCHOLOGY REVIEW (Feb. 14, 2019, 21:17 PM), https://doi.org/10.1016/j.cpr.2010.08.006. 34 Emily F. Rothman, Deinera Exner, Allyson L. Baughman, The Prevalence of Sexual Assault Against People Who Identify as Gay, lesbian or Bisexual in the United States: A Systematic Review, SAGE JOURNALS(Apr. 11, 2019, 16:32 PM), https://doi.org/10.1177/1524838010390707. 35 Rebecca L. Stotzer, Violence against transgender people: A review of United States data, ELSEVIER AGGRESSION AND VIOLENT BEHAVIOUR (Apr. 01, 2019, 15:41 PM) https://doi.org/10.1016/j.avb.2009.01.006.
13 | P a g e from seeking their services or from visiting their offices and ordered holding of meetings, if any, outside the city.
The state of affair for activists dealing in LGBTQA services is more or less the same and it is a saddening state that the police authorities, the people charged with the responsibility to protect citizenry, are causing hindrance and hampering the social liberty sought by the community. The next chapter deals with the rights of the community and their interplay with the legal systems in other jurisdictions and India.
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CHAPTER - III
INTERFACE OF LGBTQA WITH THE LEGAL
SYSTEMS
United States
The Supreme Court of United States in case of Obergefell1 emphasized on the quandary of homosexuals observing that the state itself had condemned same-sex intimacy as immoral and penal until the 20th century. The individuals were devoid of dignified identity and living owing to the mainstream societal conventions and homosexual stereotyping.2 The court also recognised the prevalent discrimination amongst the employees because of their sexual orientation and preferences and held such discrimination to be discrimination on the basis of sex3 on the rationale that it entrails unfavourable treatment to the homosexuals.
In 2003, the court while decriminalizing sexual activities amongst homosexuals observed that it was a prerogative between two adults who consent to the sexual conduct with full knowledge of the consequences associated with it and the same did not injury either the public or government or children or non-consenting homosexuals.4 In furtherance of their right to liberty, in light of the Due Process Clause, central to the constitutional scheme, they are entitled to engage in such conduct without the state intervention.5
However, there is no federal law in United States outlawing discrimination against the LGBTQ except the federal executive orders and thence; LGBTQ residents of certain states are unprotected.6 The common myth that sexual assault is an exclusive heterosexual offence has to elude with passage of time and it is to be recognised that sexual assault can be committed against anyone, including the LGBTQ community.7 More often they are expected to remain silent and the crime goes unreported making
1 Obergefell, et al. v. Hodges, Director, Ohio Department of Health, et al., 576 US (2015). 2 Price Waterhouse v. Hopkins, 7490 U.S. 228, 231 (1989). 3 Kimberly Hively v. Ivy Tech Community College of Indiana, 830 F.3d 698 (7th Cir. 2016). 4 Lawrence v. Texas, 539 U.S. 558, 562 (2003). 5 Roberts v. United States Jaycees, 468 U.S. 609, 610 (1984). 6Stotzer, supra note Chapter II at 35. 7 Tarynn M. Witten and Eller, Anti-transgender violence: The “Invisible” Human Rights Violation, PEACH REVIEW: AN INTERNATIONAL QUARTERLY 1, 4-9 (1999).
15 | P a g e them more vulnerable and easy to trap victim.8 The Gender Motivated Violence Act9 enacted by the New York City makes gender oriented violence unlawful and the violence under this act includes sexual violence. The court has held that this Section is applicable to the transgender community.10
Apart from this there is no federal law in the United States to safeguard the LGBTQA community from offences of sexual assault and violence.
South Africa
In the Apartheid era (1948 - 1994) when the country was governed by the National Party, homosexuality was considered to be a criminal offence punishable with imprisonment. The community was coerced to undergo gender reassignment surgery to cure their sexual orientation and keep it within the bounds of the male-female dichotomy. This law led to the harassment and social exclusion of the LGBTQA community in Africa. However, in the Post-Apartheid era, in 1993 the Bill of Rights recognised the rights of the LGBTQA community prohibiting discrimination, sexual violence, etc. and the same were incorporated in the Constitution in 1996.11 The South African Constitution became the first in the world to explicitly recognise the right of the individuals of distinct sexual orientation.12 Of late, the constitutional court in South Africa held that any law prohibiting homosexual conduct in private between two consenting adulating will be considered to be in violation of the constitutional mandate13 and the law on sodomy infringes the constitutional right to privacy and equality of the LGBTQA community14.15
Regardless of bestowment of such rights, the community faces sexual violence; instances of corrective rape also called homophobia or curative rape with the
8 California Coalition against Sexual Assault, Focusing on Pride: Supporting Lesbian, Gay, Bisexual and Transgender (LGBT) Survivours of Sexual Assault, CALIFORNIA COALITION AGAINST SEXUAL ASSAULT (Apr. 11, 2019, 15:29 PM), https://www.calcasa.org/wp-content/uploads/2010/12/LGBT- Part-1-UPLOAD-v2-12.29.10.pdf. 9 The Gender Motivated Violence Act, 42 U.S.C. § 13981 (2000). 10 Schwenk v. Hartford, 204 F. 3d 1187 (9th Cir. 2000). 11Constitution of the Republic of South Africa, 10th December 1996 available at https://www.refworld.org/docid/3ae6b5de4.html. 12 Supra note 9 at Section 9. 13 National Coalition for Gay and Lesbian Equality v. Minister of Justice, 1999 (1) SA 6 (CC). 14 S v. Kampher, 1997 (4) SA 460 (C). 15High Court of South Africa (Witwatersrand Local Division): National Coalition for Gay and Lesbian Equality et al. v. The Minister of Justice et al., INTERNATIONAL LEGAL MATERIALS (May 05, 2019, 14:02 PM), http://www.jstor.org/stable/20698832.
16 | P a g e objective to cure the sexual orientation and make the victim heterosexual; sexual assault; re-victimization and inaction by of the police agency, etc.16 The case of is of interest as despite of their being laws and policy framework to safeguard the rights and interests of the LGBTQA community, the inefficacy in implementation has taken a troll. It thus becomes incumbent on the governmental institutions to ensure that the provisions are effectively implemented in honour of the LGTBQA community.17
United Kingdom
In United Kingdom, The Gender Recognition Act, 2004 coerces an individual to stay within the binary of being either a male or a female and simultaneously prove that they have been living, at least for two years, in their ‘acquired gender’ before granting them recognition under the Act. Although, the British Courts, who authored the law in India, decriminalised homosexuality as early as in 196718 and observed that sexual orientation of an individual is established even before the age of puberty19 and hence setting up a minimum age of consent is an uncalled for obligation on part of the legislature.
European Union
Historically, the Corpus Juris Civilis of Justinian provided for public castration and then execution of all persons who indulged in homosexual conduct. It was considered to a capital crime in most of the European Countries. Out of 26 countries, 16 countries have recognised and legalised same-sex partnership, marriage and rights arising out of such union as against the others.
Recently, the Secretary General of the Council of Europe issued a mandate prohibiting sexual attacks against the LGBT community rampant across Europe and emphasised on the need for stringent anti-discrimination laws to safeguard this Section of the society. Additionally, The European Court of Human Rights in 1981
16 Dipika Nath, We’ll Show You You’re a Woman: Violence and Discrimination against Black Lesbians and Transgender Men, HUMAN RIGHTS WATCH (May 09, 2019, 02:41 AM), https://www.hrw.org/report/2011/12/05/well-show-you-youre-woman/violence-and-discrimination- against-black-lesbians-and#7335e4. 17 Id. 18 The Sexual Offences Act, 1967 c. 60. 19 Euan Sutherland v. United Kingdom, (2001) ECHR 234.
17 | P a g e decriminalized same-sex sexual behaviour and ruled that criminalizing the same is in violation of the protection of an individual’s private life.20
Also, in a progressive set, Commissioner of Human Rights, Council of Europe has recommended need for greater protection against the LGBT people in 2016. However, there is no legislative mandate ensuring protection of the LGBTQA community in European Union.
Canada
Canada is considered to be a LGBTQA community friendly across globe and in 1995, the supreme court of Canada recognised that sexual orientation is implicit in “sex” under Section 15 of the Canadian Charter of Rights and Freedom, 198221 and thus any discrimination against LGBTQA on the basis of sexual orientation is prohibited.22 In addition to this, even the Canadian Human Rights Act23 explicitly prohibits discrimination on the basis of gender identity and sexual orientation24.
In 1969, homosexuality in Canada is partly decriminalised to the extent of sexual acts between two consenting adults above the age of 21 years and in private. Also, same sex-marriage and parenting rights have been recognised in Canada.25 Although, there is no clear mandate of law to criminalize sexual offences against the LGBTQ community, reports suggest that 43% and 42% of female and male bisexuals, 40% of gay, 49% of transgender, 33% of lesbians have been sexually harassed.26
Other Jurisdictions:
In Armenia, homosexuality has been legalised since 2003, however, pragmatically it remains to be a taboo leading to societal out casting. Same sex-marriage within the country has been constitutionally banned; however, the law recognises same-sex
20 Dudgeon v. The United Kingdom (1982) 4 ECHR 149. 21 Egan v Canada, (1995) 2 SCR 513. 22 Delwin Vriend & ors. v. Her Majesty the Queen in Right of Alberta & ors., (1998) 1 SCR 493. 23 Canadian Human Rights Act, R.S.C., 1985, c. H-6. 24 M v. H, (1999) 2 S.C.R. 3. 25 Robert Wintemute, Sexual orientation and the charter: The achievement of formal legal equality, 1985-2005 and its limits, MCGILL LAW JOURNAL, (May 15, 2019, 01:43 AM), https://heinonline.org/HOL/Page?handle=hein.journals/mcgil49&div=47&id=&page=&t=1558409286 &collection=journals&t=1558409286. 26 Catherine Taylor, Every Class in Every School: Final Report on the First National Climate Survey on Homophobia, Biphobia and Transphobia in Canadian Schools, EGALE CANADA (May 15, 2019, 02:34 AM), https://egale.ca/wp-content/uploads/2011/05/EgaleFinalReport-web.pdf.
18 | P a g e marriages performed abroad since 2017. It is one of the countries to have signed the Joint statement on ending acts of violence and related human rights violations based on sexual orientation & gender identity, 2011.27 The government recognises sexual and physical violence against the LGBTQ Community within the country but there is no law to protect them against the same.
The Supreme Court of Belize, in 2016 became the first commonwealth court declare the laws criminalizing same-sex intimacy as unconstitutional by declaring Section 53 of the criminal code as ultra vires and thereby affirming LGBTQA rights to privacy, liberty, equality and a dignified living.28
Even Bangladesh, the Supreme Court has recognised the existence of the third gender to bestow rights and liberties on the LGBTQ community which has been previous denied to them for decades. However, no affirmative legislative action has been taken to ensure their protection against sexual harassment and assault.
Similarly, in Australia, any change in the gender of an individual can be legitimately recognised after the age of 18 years and it is imperative that such individual should be unmarried and must have undergone some medical treatment or gender affirmation surgery before the state recognises them as such. The court in case of Nicholas Toonen v. Australia29 held that the criminal statute criminalizing sexual acts between men was in violation on the mandate laid down under Article 2 and 17 of the International Covenant on Civil and Political Rights.30
However, there is no criminal law safeguarding them explicitly against the sexual violence. Instead, all the aforementioned jurisdictions, in order to abolish sexual assault, exploitation and violence against the LGBTQ community, take the aid of the International Conventions on Human rights.
27 Ending Acts of Violence and Related Human Rights Violations based on Sexual Orientation & Gender Identity, HUMAN RIGHTS COUNCIL ON LGBT RIGHTS (May 14, 2019, 01:24 AM), https://geneva.usmission.gov/2011/03/22/lgbtrights/. 28 Caleb Orozco v. Attorney General of Belize, Claim no. 668/2010 (2016) 29 Nicholas Toonen v. Australia Communication, No. 488/1992, UN Doc CCPR/C/50/D/488/1992 (1994). 30 Supra Chapter II at 15.
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Jurisdictions like Canada, Ireland, England and Wales, States in Australia, Finland, and some states in the United States31 have adopted gender-neutral laws to making it inclusive, however, the laws lack uniformity.32 The definition of sexual offences has been expanded to include penetrative and non-penetrative sexual acts while others have recognised that even men can be victims of rape.33 However, the third gender is begotten and their rights as victims of sexual offences are not taken into account in the aforesaid jurisdictions.34
India
In India, Section 377 exists since the Britain Buggery Act, 1533 enacted by King Henry VIII, when the country was colonised, which prohibited carnal intercourse against the order of the nature and termed it as an unnatural offence. This led to the marginalization of the LGBTQA community since the Victorian era. While the law of similar nature was abolished in many western countries, the post-colonial countries like in Africa and Asia continued to retain it.
The community has suffered ridicule, denial of basic rights, sense of gender identity and abuse at the instance of the state authorities and the society. Their existence was ad infinitum questioned on grounds of social morality, public indecency and obscenity. The community struggled to pave its path and co-exist in a society at the cost of humiliation and disgrace. In 2009 there was a ray of hope for the community in Delhi as the Delhi High Court read down the law under Section 377 IPC to the extent of consensual sexual intercourse between two consenting homosexual adults. The rationale was to secure health care for the community which was otherwise prone to HIV/AIDS. However, the decision gave no legitimate recognition given to the third gender and the hetero-normative societies understood only the male-female dichotomy.
The atrocities faced by the community were untold until 2010, when Professor Siras was suspended from the Aligarh University after having clandestinely photographed
31 Corinne Lennox and Mathew Waites, Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: From History and Law to Developing activism and transnational dialogues, UNIVERSITY OF LONDON (May 08, 2019, 09:26 AM), https://www.jstor.org/stable/j.ctv512st2.5. 32 Philip N.S. Rumney, In Defence of Gender Neutrality Within Rape, SEATTLE JOURNAL FOR SOCIAL JUSTICE (May 06, 2019, 01:57AM), https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/. 33 United States v. Smith, 574 F.2d 988 (9th Cir. 1978). 34 Rumney, supra note 32 at 482.
20 | P a g e with another man in a compromising position within the four walls of his house without any concern as to his privacy. The mere presence of law criminalizing same sex relations, irrespective of whether being consensual or non-consensual, gave room for exploitation of the LGBTQA community.35 A consolidated compendium shows blackmail, extortion, sexual assault including rape by the investigating agency, sexual hate crimes and sexual assault.36 Abuse of power by the police officials is a matter of routine owing to the age-old intolerance against the sexual minorities in the societal structure.37
Thereafter, in an appeal against the Naz Foundation decision, the Supreme Court in 201338 reinstituted the provision of Section 377 IPC as it was prior to the 2009 decision holding it to be constitutional. The court further reiterated that the decisions of the foreign courts are only persuasive in nature and not binding on the Indian Courts and A law should not de decriminalised and be made unconstitutional o0nly because courts in other jurisdictions are following this trend. The court went on to say that India society is not ready for this revolutionary reform, especially when the LGBTQA community constitutes only a miniscule minority. The judgment led to LGBTQA processions and pride parades criticizing the decision as regressive and thus, caused hue and cry throughout the nation.
After this uproar and transactivism throughout the country, the Supreme Court in 2014 in the case of NALSA v. Union of India legally identified the third gender and the transition from one gender to another. In furtherance of this, the court also recognised the fundamental rights of the community under the Indian Constitution and human rights and declared that all the civil and criminal statutes that do not recognise third gender will be deemed to be discriminatory in light of Article 15 of the Constitution. In accordance with Article 15 of the Constitution, any discrimination on the ground of “sex” is prohibited at the instance of the state. The Court interpreted “sex” to include sexual orientation and gender identity of an individual. The decision directed affirmative action on part of the Central and the State Governments to ensure non-infringement of fundamental rights, public health and social welfare of the
35Geetanjali, supra Chapter II at 5, 24. 36Id. at 24-25. 37Id. at 26-28. 38Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors., (2014) 1 SCC 1.
21 | P a g e community in light of the Yogyakarta principles.39 This gave a sense of relief to the LGBTQA community as their human rights were upheld despite the fact that they are insignificant in number40; however, the pragmatic reality remained unchanged despite the recognition.
The Ministry of Social Justice in a conversation with the trans activism, constituted an expert committee to make recommendations in furtherance of the judicial mandate in the NALSA decision, and on the basis of this report, the Rights of Transgender Bill, 2014was introduced in and adopted by the Rajya Sabha and the same was sent to the Lok Sabha for consideration. The Bill had an inclusive definition of transgender.41
Meanwhile, in 2016, the speaker allowed the introduction of a fresh bill for transgender community, as a private member’s bill, called The Transgender Persons (Protection of Rights) Bill, 2016. The latter bill failed to secure the mandates so declared by the NALSA decision. The failure of bill is threefold, firstly, the it does not appreciate the diversity within the transgender community, that is, Lesbians, Gay, Bisexual, Transgender, Queer, Asexual persons, jogappas, hijras, aravanis, kinnars, and other socio-cultural gender identities instead it defined transgender person as someone who is not wholly a male or a female or neither a male nor a female or a combination of male and female and thereby retaining the male-female dichotomy and; Secondly the bill recognises sexual offences and violence against the community as crimes punishable with petty punishment of 6 months to 2 years and does not include them within the ambit of sexual offences under the IPC, and; lastly, the bill remained silent on the aspect of affirmative action on part of the central and state government in terms of reservations for employment and education42 to ensure adequate representation of the otherwise marginalised community and further the mandate laid down by the NALSA decision. After the appointment of the standing
39 Yogyakarta, supra Chapter II at 16. 40 NALSA, supra Chapter I at 9, Para 123. 41 All persons whose own sense of gender does not match with the gender assigned to them at birth. They will include trans-men & trans-women (whether they have undergone sex reassignment surgery or hormonal treatment or laser therapy, etc.), gender queers and a number of socio cultural identities, such as kinnars, hijras, aravanis, jogtas, etc. 42 Aniruddha, supra Chapter I at 4, 235.
22 | P a g e committee, around 55 recommendations were proposed but all of them were blatantly rejected and the bill was kept intact in its original form.43
A modified version of this 2016 Act, called the Transgender Persons (Protection of Rights) Bill, 2018 was passed by the Lok Sabha falls short to embrace the struggle of the LGBTQ community and in essence the opinion of the community itself was not taken into account. In nutshell, it does not recognise the third gender, their self- identity and self determination in law; the bill does not make provisions for the reservation of the LGBTQA community as socially and educationally backward class for the purposes of education and employment to ensure adequate representation of the marginalised community nor do the provisions lay down the with respect to health care, legal awareness or welfare schemes amongst the community44 and thereby, maintains the status qou of the community in terms of social exclusion and vulnerability as against the NALSA mandate of inclusion.
The discussion in parliament neither suggested any amendment in the criminal and civil law so as to include the third gender within the statute nor did they recognise the instances of sexual assault and violence against the community at the behest of the governmental agencies and by other individuals in the society. Therefore, it becomes imperative to point of the lacunas and insist on the rectification of the same to do justice to the struggle of the LGBTQA community. The next chapter traces the impact the judiciary over the rights of the LGBTQA community and its role in the criminal justice system in India.
43 Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender Persons (Protection of Rights) Bill, 2018, HUMAN RIGHTS LAW NETWORK (May 12, 2019, 11:31 AM), https://hrln.org/wp- content/uploads/2019/01/Critique-of-the-TransBill.pdf. 44 Vishakha Choudhary and Vishesh Sharma, The Transgender Persons (Protection of Rights) Bill, 2018: A Tale of Reneged Promises, OXFORD HUMAN RIGHTS HUB (May 12, 2019, 13:17 PM), http://ohrh.law.ox.ac.uk/the-transgender-persons-protection-of-rights-bill-2018-a-tale-of-reneged- promises/.
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CHAPTER - IV
CRIMINAL JUSTICE SYSTEM IN INDIA AND IMPACT OF JUDICIARY ON LGBTQA
“I am what I am, so take me as I am”1
The IPC does not provide for the definition of sexual offences and all sexual offences, except Section 377, are made gender-specific, that is, the victim is always deemed to be a woman while man is seen as the perpetrator.2 Sexual offences can be defined as range of offences wherein the sexual sanctity and bodily integrity of an individual is interfered with without his/her consent.3 Offences like rape, outraging the modesty, sexual harassment, disrobing, stalking, and voyeurism are all offences sexual in nature and remedy, under these provisions, lies only with the female victim in India.
As far as the rights of the LGBTQA community are concerned, there is no acknowledgment of the same under the IPC except Section 377 which states that any carnal intercourse against the order of the nature will amount to unnatural offence regardless, whether it was consensual or non-consensual.4 Rather than assisting the community, this Section proved to be a hindrance for their gender identity and consensual sexual conduct between two consenting adults subjecting them to, more often than not, harassment and victimization at the instance of the members of the society and the police agency. The National Commission for Women in 19935 advocated deletion of Section 377 to give legitimacy to same sex relationships between consenting adults. Even though it was considered to be a progressive step, the commission did not take into account the views and concerns of the community and additionally, for more than a decade the bill laid dormant.
Apart from Section 377 there is no reference to LGBTQA community as victims of other sexual offences and presently, such offences are exclusive to women in spite of the humiliation, harassment and sexual violence faced by the community owing to the
1 Johann Wolfgang von Goethe, German Philosopher quoted in Navej Singh Johar v. Union of India, 2018 (1) SCC 1, September 6, 2018 2 Rumney, supra Chapter III at 32. 3 Id. at 485-487. 4 Supra Chapter II at 8. 5 Sexual Violence against Women and Children Bill, 1993.
24 | P a g e institutional ideologies.6 The rights of the sexual minorities were at a standstill until the sexual minority activists and groups claimed striking down of Section 377 of the Indian Penal Code, 1860 as unconstitutional and evade social banishment they faced in the hands of the state institutions, the society and in terms of accessibility to medical services.
In 1991, the AIDS Bhedbhav Virodhi Andolan (hereinafter referred to as “ABVA”) published a report7 revealing incidents of extortion, blackmail and sexual harassment and violence faced by the gay community at the instance of the police calling the repeal of law under Section 377 that discriminates between the heterosexuals and the homosexuals.8 It was followed by an uproar in 1994 when team of doctor in Tihar Jail concluded that 90% of the inmates in the prison indulged in homosexual activity and recommended facilitation of condoms to prevent STDs. However, Kiran Bedi, inspector general of Tihar Jail refused the facilitation of condoms in jail on the pretext that it will promote homosexuality.9 ABVA filed a writ petition for declaration of Section 377 as ultra vires the constitution and demanding condoms for the inmates, however, the petition was dismissed in 2001.
Later, Naz foundation (India) Trust, a non-governmental organization, filed a writ petition with a plea to declare Section 377 as unconstitutional to the extent of sexual acts between consenting adults of the same sex in 2001which was dismissed in limine in 2004 and thereafter reinstated in 2006 on the order of the Apex Court. It was an occasion to interrogate the sate machinery from a trans lens. To provide greater thrust to the cause, the National AIDS Control Organization and ‘Voices Against 377’ extended their support to the petition. 10 In 2009, the Delhi High Court through Justice Shah declared the 150 years old draconian law as unconstitutional and legalized homosexual activities between consenting adults.11 The decision was justified with the rationale that the very essence of the provision is against the human rights of the miniscule citizenry.12 The judgment is of vital importance as it was in response to a transactivism movement, upholding the rights of privacy and dignified life of the
6 NALSA, Supra Chapter I at 9. 7 Less Than Gay, supra Chapter I at 13. 8 Id. at 5. 9 Aniruddha Dutta, supra note 4 at 231-232. 10 Naz Foundation v. Govt. Of NCT of Delhi (2009) 160 DLT 277 (DB). 11 Id. at 82. 12 Id. at Para 80-81.
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LGBQA community and in essence upholding the spirit of the constitution and breaking the hetero-normative societal standards and accommodating the voices of the sexual minority.13
The issue of gender neutrality of sexual offences first arose in Sudesh Jhaku v. K.C. Jhaku in 199614 wherein the Delhi High Court insisted on the legislature to articulate gender neutral criminal law.15 Thereafter, in 1999, the Supreme Court drafted issues to be looked into by the Law Commission of India. In furtherance of this, the 172nd Law Commission Report16, recommended substitution of the rape on law by a gender- neutral law on sexual assault and additionally deletion of Section 377 of IPC.17 The report did not take shape of an amendment until the introduction of the Criminal Law Amendment Bill, 2012 making the offence of rape and sexual assault with regards to the victim gender neutral.
However, prior to its enactment, the heinous Nirbhaya rape case happened leading to the constitution of Justice Verma Committee.18 Before making such recommendations, the Verma Committee paid heed to the voice of LGBTQA community rights on sexual offences and the need for it to be gender inclusive. The committee recommended retention of the law on rape and in addition making sexual assault a gender neutral offence, unlike the 172nd report, by using term “person” instead of “woman” for the purposes of defining victim of rape and sexual assault and retaining the term “man” for the perpetrator and thereby bringing within its scope the transgender community.19 In furtherance of this, the Criminal Law Amendment Ordinance, 2013 undertook a completely gender neutral approach on the rape laws, however, the Criminal Law Amendment Act, 2013 retained the gender specific definitions, despite the recommendations of the Verma committee.
13 Rukmini, supra Chapter II at 9. 14 Sudesh Jhaku v. K C Jhaku, 1998 Cri LJ 2428. 15 Id. at Para 29. 16 Ministry of Law, Government of India, One Hundred and Seventy Second report on Review of Rape Laws, LAW COMMISSION OF INDIA (2000). 17 Flavia Agnes, Law, Ideology and Female Sexuality Gender Neutrality in Rape Law, ECONOMIC AND POLITICAL WEEKLY (May 06, 019, 12:21 PM), https://www.jstor.org/stable/4411809. 18 Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013). 19 Agnes, supra note 17 at 845.
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The law was criticised for undermining equal citizenry and protection rights for the transgender community.20 There is no law to protect the transgender community against the sexual offences like rape, sexual harassment, voyeurism, stalking, etc. and it still remains to be a matter of discussion within the four corners of the academicians and research organisations.21
Simultaneously, the Supreme Court in 2013 overturned the Naz Foundation decision of the Delhi High Court, further re-criminalized homosexuality.22 The court held that the law laid down under Section 377 is constitutional and does not infringe the fundamental rights of the LGBTQA community. 23 The legally unsustainable rationale given by the court was that firstly, the community constitutes a miniscule and negligible part of the population24; secondly, the court cannot declare law ultra vires by relying on the decisions of foreign jurisdictions.25 The court further added that criminal law in a country is the reflection of the majoritarian public morality and the Indian society vehemently disapproved homosexuality.26 While discarding the notions of privacy, the court held that state interference is this case is justified on the ground of public health, safety and morality.27 However, it is imperative to note that the court did not rule out the possibility of legal reform instead it refused to extend the constitutional principle of equality to read down Section 377 IPC.
“Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting Section 377 IPC from the statute book or amend
20 Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian Rape Law, CAMBRIDGE UNIVERSITY PRESS (May 03, 2019, 17:55 PM), https://www.cambridge.org/core/journals/asian-journal- of-comparative-law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0. 21 Id. 22 Simon Bronitt and Ashutosh Misra, Reforming Sexual Offences in India: Lessons in Human Rights and Comparative Law, GRIFFITH ASIA QUARTERLY (May 07, 2019, 9:46AM), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2623352 23 Supra Chapter III at 38. 24 Id. 25 Id. 26 Rukmini, supra Chapter II at 9. 27 Gautam Bhan, Challenging the Limits of Law: Queer Politics and Legal Reform in India in BECAUSE I HAVE A VOICE: QUEER POLITICS IN INDIA 468 (Arvind Narrain & Bhan Gautam eds., 2005) (2003).
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the same as per the suggestion made by the Attorney General.”28
The decision led to hue and cry and was also criticized for not being in conformity with the International Covenant on Civil and Political Rights29 to which India is a signatory. This gave rise to transactivisim throughout the country and thereafter, in 2014 the blossoming activism lead to the NALSA decision wherein the court explicitly recognised the identity of the third gender, protecting their fundamental rights under Article 14 of the Constitution of India, 1950. The court held that “person” under article 14 is not limited to mean a man and a woman but extends to include within its scope hijras and transgender persons who are neither male nor female.30 Additionally, right to dignified life and personal liberty under Article 21 was extended to the transgender community and all constitutional rights and protection of law was assured to the community and positive obligation was imposed on the state to protect such rights.
The judgement was a progressive step to safeguard the constitutional off springs in line with the constitutional morality. The decision also identified the predicament of sexual violence faced by the community.
“55. Non-recognition of the identity of Hijras/transgender persons denies them equal protection of law, thereby leaving them extremely vulnerable to harassment, violence and sexual assault in public spaces, at home and in jail, also by the police. Sexual assault, including molestation, rape, forced anal and oral sex, gang rape and stripping is being committed with impunity and there are reliable statistics and materials to support such activities.”31
The decision was also appreciated as it upheld the rule of law, regardless of the numerical significance of the community and the normative societal standards of morality and thereby giving a sense of assurance to the transgender community as to
28 Supra Chapter III at 38. 29 Supra Chapter II at 15. 30 NALSA, supra Chapter I at 9, Para 54. 31Id. at Para 55.
28 | P a g e the protection of the rights in addition to their identification as an underprivileged Section of the society.32
After the legitimate recognition of the third gender through the NALSA decision, the law on rape as well as other sexual offences should have been made gender neutral as now the trans community, like women, belongs to the oppressed and vulnerable class prone to sexual violence and harassment owing to the societal power dynamics.33 Even though the countries across the world are accepting distinct sexual attitudes and norms but the position with respect to sex law in India remains static. Right to seek protection from sexual assault is a right guaranteed by the constitution and a crucial pillar to further gender justice and the same cannot be ignored.34 The gender neutrality of sexual offences reflects a nuanced understanding of the nature and consequences of the sexual offences under the criminal law and recognising that women, men and the transgender community can be both victims and the perpetrators of the crime.35
The assignment of particularistic roles to a gender under criminal law compels the LGBTQA community to suppress gender identity and fall under either of the two hetero-normative genders. This stubbornness forgoes the possibilities of reordering sexual behaviours amongst the LGBTQA, gender construction, and practices of the community, acknowledgement, self construction and their representation.36 It reinforces the hostility of behaviour towards them and coerces them to conform to heterosexual framework only.
Despite this, under the Indian criminal justice system the definition of various sexual offences is limited to the traditional male-on-female paradigm and other instances of sexual offences beyond this constrain are overlooked even though they are committed more often than not.37 The presupposition of the criminal law that victim is always a women is devoid of the instances wherein the transgender community or men are victims of the sexual offence giving rise to the need of factoring in the community not previously taken into consideration.38 PUCL’S report in 2003 recognised the struggle
32 NALSA, supra Chapter I at 9, Para 118. 33 State v. Sheodayal, AIR 1956 Nagpur 8 34 Supra note at 18, Para 4. 35 Rumney, supra Chapter III at 32, 486. 36 Pathak, supra note at 20. 37 Id. 38 People’s Union for Civil Liberties, Report on Human Rights Violation Against the Transgender Community, PUCL-K (May 03, 2019, 17:22 PM),
29 | P a g e of the transgender community, sexual abuse and violence face by them causing trauma and antithetical to the constitutional right of equal protection to all. 39
The critique behind the gender specificity of sexual offences is that it reinforces the binary notion of gender, that is, the male-female dichotomy, and leads to social exclusion.40 The Court by adopting a human-rights approach recognised the rights of the third gender and imposed a positive obligation o the State to not discrimination on the bases of sexual orientation. The recognition of gender identity in isolation without substantive rights is a futile exercise.
The court has recognised the LGBTQA community as a vulnerable and oppressed class in the NALSA decision and adopting a human rights approach gave legal recognition to the community. Now, retained of law on sexual offences which is gender specific, despite of the fact that both the women (protected from sexual offences) and LGBTQA (not protected from sexual offences) belong to the vulnerable section of the society is in violation of the constitutional principle of equality, further the discrimination prohibited by Article 15, is against the human rights jurisprudence adopted by the Supreme Court in NALSA decision and legal recognition to the community will be in vain if the sexual offences against them, discrimination and vulnerability is not taken care of.41 Recognition of only the former and not the latter leaves the vulnerable community to become subject of sexual violence, harassment and assault including rape, molestation, forced oral and anal sex, stripping, gang rape, etc. in public and private sphere by the members of the society and the state institutions like jail and police authorities.42
A study conducted by Alok Gupta on over 50 reported judgments under Section 377 reflected that over the past 50 years, 30% of the cases dealt with sexual assault and abuse of minors and the remaining dealt with non-consensual sexual activities with women and between men. Prosecution of cases involving consensual sexual conduct under Section 377 was almost none and instead the law was grossly misused by the police agency for the purposes of exploitation and harassment of the LGBTQA http://pucl.org/sites/default/files/reports/Human_Rights_Violations_against_the_Transgender_Commu nity.pdf. 39 Id. at 60-68. 40 Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of Victims, Perpetrators, and Harm in Feminist Theories of Rape, 36 HARVARD JOURNAL OF LAW & GENDER 503, 567 (2013) 41 Pathak, supra note at 20. 42 NALSA, supra Chapter I at 9, Para 55.
30 | P a g e community by charging them under Section 377.43 Later, the accused persons are either discharged by the police officer owing to lack of substantial medial evidence to prove carnal intercourse against the order of the nature or a closure report is filed leading to the release of the accused person.44 Section 377 was being used as a tool for sexual violence, exploitation or harassment by the governmental institutions and agencies against the sexual minorities.45
Acknowledgment of the vulnerability of the LGBTQA community and yet excluding them from the definition of sexual offences under the criminal law is equivalent to abdication of state’s positive obligation to ensure equal protection for all citizenry. In addition to this, the gender specificity of sexual offences is discriminatory on the basis of “sex” under Article 15 of the Constitution. The court has held that sex includes “sexual orientation”.46 Notion of gender identity of an individual is a fundamental right safeguarded under Article 21 of the constitution within the realm of dignified life and denial of same leads to nullity of equality assured by the constitution.
Additionally, the consensual same sex conduct, which is more frequent to the trans community than others, should be decriminalised. There is nothing unnatural about the conduct and the sexual preferences are inherent in an individual and cannot be changed. The right of two individuals to select partners of their choice and consensually engage in sexual conduct in private should not be criminalised. The chapter of the dissertation unfolds the decriminalization of Section 377 and analysis of the Navtej Singh Johar decision.
43 Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, ECONOMIC AND POLITICAL WEEKLY, 4817 (May 08, 2019, 15:30 PM), https://www.jstor.org/stable/4418926. 44 Id. at 4819-4820. 45 K.I.Vibhute, Consensual Homosexuality and the Indian Penal Code: Some Reflections on Interplay of Law and Morality, JOURNAL OF INDIAN LAW INSTITUTE, 12 (May 08, 2019, 16:03 PM), https://www.jstor.org/stable/43953422. 46 NALSA, supra Chapter I at 9, Para 68, 77.
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CHAPTER - V
SECTION 377 AND ITS DECRIMINALIZATION
“The state cannot demean their existence or control their destiny by making their private sexual conduct a crime”1
Section 377 of the IPC states that any person who voluntarily has carnal intercourse against the order of the nature with a man, woman or animal will be said to have committed an unnatural offence. The words ‘carnal intercourse against the order of the nature’ are however, not defined and remain ambiguous and up to the interpretation of the judiciary. It takes into account unnatural offences ranging from touching another person with an unnatural lust to carnal intercourse.2 Initially, the judiciary interpreted it to include only coitus per anum3 but later read it to include coitus per os4. In addition to this offences of bestiality5, buggery, sexual relation between females, males6, mutual masturbation between same sex 7and different sex partners, oral sex, anal sex, etc are included within the domain of ‘carnal intercourse against the order of the nature’. That is, any (un)consensual penile-animal, penile-oral and penile-anal, howsoever minimal, amounts to carnal intercourse. The law under Section 377 is gender neural and includes sexual conducts of both heterosexuals’ and homosexuals; however, the burden of law has often fallen on the latter only.8
The Wolfenden Committee9 in 1957 in its report concluded that the purpose of criminal law is to preserve public decency and morality and furthered the thesis of Mill that argued private space should be free from state interference.10 That is to say, criminalizing consensual homosexuality in private space between two adults neither
1 Justice Kennedy, Lawrence v. Texas, 539 US 558, 18 (2003) 2 O’ Phillips, Sexual Offences in Zimbabwe: Fetishisms of Procreation, Perversion and Individual Autonomy, UNIVERSITY OF CAMBRIDGE, 185 (1999). 3 Government v. Bapoji Bhatt (1884) 7 Mysore LR 280. 4 Khanu v. Emperor AIR 1925 Sind 286. 5 Khanu v. Emperor AIR 1934 Lah 261. 6 DP Minwalla v. Emperor, AIR 1935 Sind 78. 7 Brother John Antony v. State, 1992 Cri LJ 1352, 1359(Mad). 8 Geetanjali, supra Chapter II at 5, 21. 9 Wolfenden Committee, Report on Homosexuality and Prostitution, (Chairman: Sir John Wolfenden, 1957). 10 HLA HART, LAW, LIBERTY AND MORALITY, 88 Oxford University Press (1963).
32 | P a g e fits in the theoretical nor operational realm of criminal law11 and hence should be decriminalized as it is a matter of private morality.12
After the battle fought in the Naz Foundation decision and it’s overruling in the Suresh Koushal decision, the prima facie question with respect to homosexuality under Section 377 IPC was whether it is premised on the theory of legal moralism as propounded by Lord Devlin and James Fitzjames Stephen or on the Harm principle advocated by Prof. HLA Hart and John Mill.13 While the fifth and the fourteenth law commission and the decision of Suresh Koushal were driven by the Devlin approach and asserted that immorality per se is a reason sufficient for state interference and did not favour decriminalisation of homosexuality; the Naz Foundation decision of the court was based on assertion of the Wolfenden committee report and the argumentation of Prof. HLA Hart stating that state should not interfere in the matters of private sexual morality unless it causes harm to others and thereby seeking intervention on part of the judiciary to acknowledge the sexual autonomy of an individual and right to privacy of the two consenting homosexual adults in private.14
In 2017, the Supreme Court in deciding the question of whether right to privacy was a fundamental right within the scope of Article 21 of the Constitution held that it was in fact a fundamental right.15 Additionally, the court, taking critical view of the regressive step taken in Suresh Koushal decision, observed that the decision is against the rights jurisprudence as established by the Supreme Court holding,
“Sexual orientation is an essential attribute of privacy. Discriminating against an individual on the basis of sexual orientation is deeply offensive to the dignity and self-worth of the individual.”16
This observation of the Supreme Court raised the hopes of the transgender community with respect to their rights. In 2018, several writ petitions were referred to the Supreme Court to adjudicate on the constitutionality of Section 377 IPC. One of such petitions, by Navtej Singh Johar, was accepted by the Court and referred to the
11Vibhute, supra Chapter IV at 45, 9. 12 Wolfenden Committee, supra note at 9, Section 61. 13Vibhute, supra Chapter IV at 45, 15. 14 Id. 15 K.S. Puttuswamy v. Union of India, (2018) 1 SCC 809. 16 Id. at Para 126.
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Constitutional Bench and five other petitions were joined to this petition. The government through an affidavit articulated that the court may determine the constitutionality of Section 377 IPC as per its wisdom.
The constitutional bench of the Supreme Court unanimously declared Section 377 of the IPC as unconstitutional to the extent it criminalizes consensual sexual conduct between two adults in private, be it between homosexuals, heterosexuals, same sex or transgender sex,17 however, it continues to govern non-consensual sexual acts against adults, minors and acts of bestiality.18 The court further held consensual sexual conduct between two adult homosexuals is natural and not ‘against the order of the nature’ – a pre-requisite under Section 377 and stated
“it is irrational, indefensible and manifestly arbitrary and the LGBT community posses the same human rights, constitutional and fundamental rights as other citizen do since these rights inhere in individuals as natural and human rights. Section 377 is in violation of Article 14, 15, 19 and 21 of the Constitution.”19
On the Anvil of Article 14
The court held that it was in violation of article 14 of the Constitution as it rendered differential treatment to the transgender community premised only on their sexual orientation. The Supreme Court reinforced its anti-majoritarian role and showcased its commitment towards the constitutional principles by adopting individualistic approach. The court considered the two-fold-test of (i) intelligible differentia and (ii) rational nexus between the differentia and the object sought to be achieved by the provision.20 The court held that the purpose of Section 377 was to protect women and children from carnal intercourse and after the 2013 amendment21, Section 375 of the IPC22 and POSCO23 sufficiently serve this purpose and the incidental effect is that even consensual sexual acts, neither harming the women nor the children, are
17 Supra Chapter I at 2, Para 97, 156, 252, 253. 18 Id. at Para 21. 19 Id. at Para 156. 20 E.P.Royappa v. State of Tamil Nadu, (1974) 4 SCC 3. 21 The Criminal Law (Amendment) Act, 2013, No. 13, Acts of Parliament, 2013. 22 The Protection of Children from Sexual Offences Act, 2012, No. 32, Acts of Parliament, 2012 23 The Indian Penal Code, 1860, No. 45, Acts of Parliament, 1860.
34 | P a g e criminalised and only victimizing the LGBTQA community who indulge in such sexual conduct.24 The failure within the provision to distinguish between consensual and non-consensual sexual conduct is patently arbitrary.25 In addition to this, all kinds of sexual conduct of the homosexuals is penalized while only certain specific conducts of the heterosexuals, which are against the order of the nature, are penalised as per Section 377 calling for an unequal treatment. The court held that
“Section 377 IPC subjects the LGBT community to societal pariah and dereliction and is, therefore, manifestly arbitrary, for it has become an odious weapon for the harassment of the LGBT community by subjecting them to discrimination and unequal treatment”26
On the Anvil of Article 15
The court while deciding the constitutional validity of Section 377 IPC on the parameters of Article 15 held that “sex” under Article 15 includes sexual orientation and any discrimination on this ground alone amounts to discrimination under Article 15. Like other citizenry, the LGBT community is equally entitled to protection at the instance of the state.27 J. Chandrachud stated that Section 377 induces silence and stigmatization of the LGBT community and buds the notions of societal morality which does not accept certain relations, as being against the order of the nature.28 The court in the following words held
“sex as it occurs in Article 15, is not merely restricted to the biological attributes of an individual, but also includes the ‘sexual identity and character’... the LGBT community is a sexual minority which has suffered from unjustified and unwarranted hostile discrimination, and is equally entitled to the protection afforded by Article 15...29The fact that only a miniscule fraction of country’s population constitutes the LGBT and that in last 150 years less than
24 Supra Chapter I at 2, Para 237. 25 Id. at Para 14, 94, 239. 26 Id. at Para 253 (xv). 27 Id. at Para 15. 28 Id. at 52. 29 Id. at 15.1, 15.2.
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200 persons have been prosecuted under Section 377, is neither here nor there.”30
On the Anvil of Article 19
The constitutional bench unanimously held that Section 377 violates the right to freedom of expression protected under Article 19 of the Constitution. The court observed that homosexuality and sexual orientation are biological phenomenon, inherent in every individual and a person has no control over it.31 Owing to the harassment, the community fears coming out of the closet and revealing their gender identity and sexual orientation. Unlike the heterosexuals, they do not express and nurture their relationships which affects not just their mental but also physical health.32 The consensual sexual acts of the community in private are not harmful or injurious to any other member of the society and hence cannot be included within the ambit of reasonable restrictions under Article 19(2) on grounds of public decency, morality and order.33 J. Chandrachud further held that
“the right to intimacy includes the right to the choice of partner and by criminalizing consensual same sex relations under Section 377 amount to denial of this right.”34
On the Anvil of Article 21
The Court had previously escalated the right to privacy from being a legal right to being a fundamental right included within the ambit of Article 21 of the Constitution. And the right to sexual privacy emanates from the right to privacy constitutionally protected and any provision in violation of this right is unconstitutional. The court held that
“...as sexual orientation is an essential and innate facet of privacy, the right to privacy takes within its sweep the right of every individual including that of the LGBT to express
30 Supra Chapter I at 2, Para 95. 31 Id. at Para 253. 32 Id. at Para 17. 33 Id. at Para 245. 34 Id. at Para 67, 151.
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their choices in terms of sexual inclination without the fear of persecution or criminal prosecution.”35
The court further held that right to privacy does not determine on right to being alone but extends to right to privacy of choice and space without the interference on part of the state, which is fundamental in cases under Section 377. The individual and sexual autonomy cannot be abridged solely because of their distinct sexual preferences.36 In addition to this, the court also recognised the right of the homosexuals to enjoy their fundamental right to a dignified living protected under Article 21 and criminal prosecution under Section 377 curtails this right and liberty37 of LGBT community from engaging in consensual sexual conduct.38
For the aforementioned reasons, the court declared Section 377 as unconstitutional to the extent it criminalises consensual sexual conduct and asserted that regardless of the number of individuals, if a fundamental right is being violated the court must interfere39 and the reasoning laid down in Suresh Koushal is fallacious and impermissible within our constitutional framework.40 The court took a shift from criminalization approach to human rights approach; societal approach to individualistic approach; and from majoritarian morality to constitutional morality holding that constitutional morality cannot be martyred for social morality41 nor can the two be substituted for each other; constitutional morality will always trump social morality.42 Justice Deepak Misra held
“In the garb of social morality, the members of the LGBT community must not be outlawed or given step-motherly treatment of malefactor by the society... if such treatment to LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to
35 Supra Chapter I at 2, Para 54, 162, 168. 36 Id. at Para 148. 37 Maneka Gandhi v. Union of India, (1978) 1 SCC 248 38 Supra Chapter I at 2, Para 16.1. 39 Id. at Para 253(ii). 40 Id. at Para 156(v). 41 Id. at Para 253 (v). 42 Id. at Para 80-81.
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protect the fundamental rights, would be failing in the discharge of their duty.”43
The court also held that retention of Section 377 induces stereotyping on how society treats the minority community and promotes a culture which results in destruction of their gender identity and hampers a dignified living. It perpetuates discrimination owing to the homophobic and transphobic attitude leading to victimization of the LGBT community.44 Even though Section 377 criminalizes only certain sexual conducts and not the relationship per se, the lens through which the LGBTQA community is looked at changes. It reinforces the stereotype attached to sexual orientation and the homosexuals are, prima facie, perceived as criminals.45 The court partially decriminalised Section 377 leading to progressive realization of the right of the sexual minorities and furthering transformative constitutionalism.
The Supreme Court discarded the social concerns that decriminalization of homosexuality will lead to proliferation of homosexuality, moral degradation in the society and breakdown the traditional Indian family values thereby affecting the social fabric.46 However, reformation of the community in the society will continue to be limited if they are harassed at the instance of governmental authorities and excluded from educational and employment services. Stringent disciplinary or criminal actions should be ensued against public servants acting in violation of the rights of the LGBTQA community. 47
The Apex Court by reading down Section 377 has hailed a major leap to further sexual rights of the LGBTQA community. The right to live a life with dignity and enjoy human rights has been acknowledged by the court in favour of the LGBTQA community by allowing consensual sexual conduct between adult homosexuals in private. The step will contribute in restoring the dignity of the LGBTQA community, however, the decriminalisation is only a step towards realization of justice for the LGBTQA community and many more measures have to be incorporated to bring in social and legal change for the community so as to gain social acceptance and equality before law.
43 Supra Chapter I at 2, Para 122. 44 Id. at Para 51. 45 Id. at Para 56, 149 46 Geetanjali, supra Chapter II at 5, 25 47Id. at 26.
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The penultimate question after the partial decriminalization of Section 377 is how far this legal change will penetrate the society.48 The questions of civil realm regarding acceptance of same-sex marriage, adoption, discrimination at workplace, etc. are unanswered.49 Similarly, in the criminal realm, the scope of application of sexual offences, presently exclusive to women, on the LGBTQA community, whether non- consensual sexual assault will amount to rape under Section 375 and 376 or will it remain to be punishable as sodomy only under Section 377 IPC, inclusion of the transgender community under the Sexual Harassment at Workplace Act50, are questions yet to be answered.
Now that same sex relationships and consensual sexual conduct amongst homosexuals is allowed, the community is more vulnerable to other sexual offences provided for under the IPC. Coming out of the closet for the community will be challenging as they may face problem of sexual harassment owing to centuries of stereotyping; stalking and voyeurism owing to the vulnerability of the community and its belongingness to the marginalised sect. of the society; outraging of modesty or insulting the modesty by the same sex partner in the relationship or by individuals in the society owing to the amble walking style and dressing of the community; offence of rape against the person belonging to the LGBTQA community and the same is not equivalent to sodomy as will be discussed in the next chapter.
The aforementioned offences, presently, are gender specific and exclusive to women with the object to protect the weak and oppressed gender (female) and in light of Article 15(3) of the Constitution. However, in a step forward, it is imperative to acknowledge the opportunity and make the law relating to sexual offences under the IPC gender neural so as to cater to the needs of other vulnerable and closeted class like the LGBTQA community and ensure protection for them. Whilst the judgment has bestowed crucial and substantive rights to the marginalised community, which has been for decades at the receiving end of bias and prejudice, it is pertinent to note that such rights cannot be of avail in isolation of other substantive rights. The argumentation on point of need for gender neutrality of criminal laws pertaining to sexual offences will be unfolded in the next chapter of this dissertation.
48 Geetanjali, supra Chapter II at 5, 25. 49 Id. at 24. 50 The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2012, No. 14, Acts of Parliament, 2012.
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CHAPTER - VI
NEED FOR TRANSGENDER INCLUSIVE SEXUAL OFFENCES
“The case for treating crimes of like heinousness appears stronger than calling for a distinction to be made between the victims of the crime based on their sex”1
The judgment of Navtej Singh Johar has given arena to voice equal protection of rights for the transgender community against sexual harassment, violence and exploitation. Resultantly, the decriminalization of Section 377 will justify the LGTBQA activism in India and ensure restoration of dignified life for the community.2 Although, even after the decriminalization of Section 377, to the extent of consenting homosexual adults, the homosexuals are put under constant legal gaze and threat of moral terrorism.3
It is the duty of the legislature and the executive to address the concerns of the community responsibly and at the earliest to justify in full spirit their substantive rights so recognised by the judiciary. Without such redressal, the acknowledgement of their substantive rights will go in vain. This chapter of the dissertation seeks to illustrate the amendments required under criminal law to make it transgender inclusive.
Presently, the offence of rape, defined under Section 3754 of the IPC, is an offence committed by a man on a woman through penetrative and/or non-penetrative sexual
1 Rumney, supra Chapter III at 32, 484. 2 Gupta, supra Chapter IV at 43, 4817-4818. 3 Id. at 4820. 4 A man is said to commit "rape" if he-— a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any ~ of body of such woman or makes her to do so with him or any other person; or d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First.—Against her will. Secondly.—Without her consent.
40 | P a g e activities is considered to be committed by a man against the sexual sanctity of women. Section 375 identifies the perpetrator as a male and the victims as a female and makes the sexual intercourse by the former with the latter against her will an offence under criminal law. The offence is punishable under Section 376 and also contains provisions with regard to aggravated form of rape wherein the perpetrator enjoys a position of power over the victim. The implicit presumption under the law is that this offence can only be committed between a man and a woman and does not take into consideration the pragmatic realities of non-consensual assault inflicted on a transgender by another man, woman or a transgender. Therefore, the LGBTQA community, who are more vulnerable to sexual exploitation owing to their positioning in the societal power dynamics, are not included within the ambit of this definition.
The offence is not made gender neutral despite the recommendations of the 172nd Law Commission Report5 and Justice Verma Committee Report6 and thereby limiting its scope to female gender centric victims and male gender centric perpetrators. The criminal law in India makes the offence of rape exclusive to women and does not recognise that other sexual minorities, the LGBTQA community, equally vulnerable and susceptible to the offence of rape. The law pertaining to Section 375 recognises neither women as perpetrators nor the LGBTQA community as victims of the said offence. The fact that more women are affected by the offence of rape is not denied
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome Substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent. Explanation I.—For the purposes of this Section, "vagina" shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.'. 5 Supra Chapter IV at 16. 6 Supra Chapter IV at 18.
41 | P a g e but this reason is not sufficient enough to exclude the LGBTQA community which thereby suffers inexplicable injury.
The Court in NALSA decision and Navtej Singh Johar decision have recognised the vulnerability of the sexual minorities and the prevalence of the offence of rape against them by the members of the society, same sex or different sex, and at the instance of the state machinery. The realization of the substantive right of allowing consensual sexual conduct amongst the homosexual and recognising them as the third existing gender in the society and encouraging them to come out of the closet requires assurance of protection of sexual rights of the community and thereby calls for an amendment to the criminal law on rape to make it gender inclusive. However, the judgment fails to recognise and equate non-consensual carnal intercourse against the order of the nature as sexual assault under the IPC and deems it to be an unnatural offence. The court recognised that consensual carnal intercourse against the order of the nature between two adults does not amount to an unnatural offence and by implication carnal intercourse against the order of the nature is a natural; however, the court failed to equate the non-consensual carnal intercourse against the order of the nature to sexual assault provided for under Section 375 of the IPC. This creates a legal fallacy and an overlap of law as the court can punish a non-consensual natural act which is already covered within the scope of Section 375, if the latter Section is made transgender neutral.
Even though non-consensual sexual activity is punishable under Section 377, the offence committed under Section 377 is distinct from that committed under Section 375 and the former cannot act as a substitute for the latter. It is pertinent to note, that in spite of Section 377 which covered offences of non-consensual sexual conduct against women, the legislature enacted the Section 375 to protect the vulnerable and oppressed class, the women and the children, in the society. Drawing an analogy, even the transgender community is vulnerable and marginalized sect. of the society and thus, requires similar protection like women. This analogy is an extension of principle of equality under Article 14, premised on the rule that like should be treated alike and there is no room for unequal treatment.
To contest that all non-consensual sexual acts will fall within the purview of Section 377 IPC is inaccurate. It is discriminatory in nature lacking intelligible differentia to
42 | P a g e distinguish between sexual assault committed against heterosexuals and that against transgender and homosexuals.7 The court in case of NALSA categorically held that an offence is an offence, regardless of the sexual orientation. The bodily integrity and sexual sanctity has been abridged in both case and the social and moral condemnation is with respect to the offence and not dependent on the gender of the victim. It is therefore wrong to argue that sexual assault against the heterosexuals is rape while that against the transgender and homosexuals is a lesser offence of infringement of only bodily integrity. It cannot be justified that the rape laws protecting women are distinct from those protecting the trans women; while former imposes a minimum punishment of 10 years to life or death, the latter has no such minimum slab.
Also, like every act of rape (as per the definition prior the 2013 amendment which called for penile-vaginal penetration as a requisite to constitute rape) cannot be reduced to an act of outraging modesty (when penetration by bottle, sticks or iron rods that caused serious injuries), similar, on drawing an correlation from Justice Verma Committee Report, every act of sexual violence, assault or harassment against the LGBTQA cannot be covered within the ambit of sodomy and unnatural offences under Section 377 and it becomes imperative to make offences the offence of rape gender neutral from the victim and accused perspective, especially to cater to the needs of the sexual minorities in the society.
In terms of the quantum of punishment prescribed; the minimum punishment for the offence of rape, after the 2018 amendment is minimum 10 years8 of imprisonment, however, there is no such minimum criterion under Section 377 and it only lays down that the court may punish the perpetrator with either description which may extend to 10 years.9 Therefore, the quantum of punishment for the offence of rape is higher than an offence committed under Section 377. Additionally, Alok Gupta, factually determined that in the past 50 years, as per the 50 reported judgments under Section 377, the number of convictions for non-consensual sex amounts to only 30% and therein the offence committed by the perpetrator is not clearly identified.10
7 NALSA, supra Chapter I at 9. 8Section 376 (1) Whoever, except in the cases provided for in sub-Section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. 9 Supra Chapter II at 8. 10 Gupta, supra Chapter IV at 43, 4819.
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Furthermore, the offence of rape also has certain categories of aggravated offences which are punishable with higher imprisonment ranging up to death penalty, however, there is no, per se, aggravated offence provided under Section 377, in fact the quantum of punishment is left to be determined by the court in entirety with no minimum slab. Such aggravated offence of rape include gang rape,11 causing death of the victim or leading her to a persistent vegetative state,12 provision for higher punishment for repeat offenders,13 etc. which are not accounted for and applicable to offences committed under Section 377.
Also, after the 2018 amendment, especial categories are added wherein if the rape or gang rape is committed with a child under the age of 12 years, the code provides for death sentence14 while children under the age of 12 years whose inherent sexual preference are distinct from the hetero-normative standards and belong to LGBTQA community, the same provision is not applicable and adequate punishment for is not provided for under Section 377 IPC. Hence, Section 377 is not an adequate alternative to the offence of rape committed against the LGBTQA community and the offence should be made gender neutral.
Also, now that the court has given legal sanctity to consensual sexual conduct between homosexuals, it will lead to homosexual relationships and the possibility of them living together. It is a question to be determined as to whether presumption of
11Gang rape.—Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons shall be deemed to have committed the offence of rape and shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person's natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this Section shall be paid to the victim. 12Punishment for causing death or resulting in persistent vegetative state of victim.—Whoever, commits an offence punishable under sub-Section (1) or sub-Section (2) of Section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, or with death. 13 Punishment for repeat offenders.—Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D and is subsequently convicted of an offence punishable under any of the said Sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person's natural life, or with death.’ 14 Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this Section shall be paid to the victim
44 | P a g e marriage can be extended in favour of such couples and if the answer is in affirmative then it gives occasion for the commission of offence under Section 376B arises15; wherein even if the homosexual couple is living separately and then one of the partner commits rape on the other, then even though the same-sex marriage is not recognised, the offence is committed without the consent of the victim and while presumption of marriage was raised. It becomes significant to cover all corners and make the offence of rape a gender neutral provision after the progressive decision in Navtej Singh Johar.
In addition to this, it has been established in chapter-II and the NALSA decision, the LGBTQA community is more vulnerable to offences like sexual assault, harassment, stalking, voyeurism, gang rape, etc. owing to non conformity with the binary notion of genders and lack of social acceptance in the society. Now that the court has decriminalised the private consensual sexual conduct between two consenting adult homosexuals, it calls for the need to make sexual offences gender neutral – firstly, the offences of outraging the modestly, defined under Section 35416 IPC and insulting the modesty defined under Section 50917 IPC, which are presently exclusive to women, to be made transgender inclusive so as encourage the third gender to come out of the closet and gain social acceptance in addition to the legal acceptance18 and attaching criminal sanction in case the modesty of the LGBTQA community is outraged or insulted. This will give a sense of assurance and protection to the community and thereby undo the historical injustice done for centuries. Owing to the amble walking style, distinct dressing and other such features, the community is more vulnerable to the aforementioned offences19 and hence, it should be transgender inclusive;
15 Sexual intercourse by husband upon his wife during separation.—Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.—In this Section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of Section 375. 16 Assault or criminal force to woman with intent to outrage her modesty.—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. 17 Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to three years, and also with fine 18 Geetanjali, supra Chapter II at 5, 25-26. 19 Id.
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Secondly, the LGTBQA community is also a victim of sexual harassment, defined under Section 354A20, and recognised by the court in the NALSA decision at the instance of the members of the society and more often by the state machineries like the police.21 The sexual harassment includes unwarranted physical contact, making remarks premised on sexual orientation or demand for sexual favours or sexual exploitation. The Section refers to only man as the perpetrator of the offence and the woman as the victim and does not take into account the frequent sexual harassment faced by the LGBTQA community.
The Delhi High Court in a progressive step affirmed the application of Section 354 A of the Indian Penal Code, 1860 thereby making room for sexual harassment against the transgender under the code. The victim contended that she was sexually harassed owing to her sexual orientation and was denied legal remedy for the same reason. The court recognizing the apologetic scenario directed the police agency to register the case to further the directions of the Apex Court in case of NALSA.22 Nevertheless, it is for the legislature to make the law inclusive and make the provision of sexual offences applicable to sexual minorities as well and thus it becomes significant to make the offence transgender inclusive;
Thirdly, owing the distinct sexual preferences, gender identity and the societal stereotyping the LGBTQA community is more susceptible to offences like disrobing and voyeurism, defined under Section 354B23 and 354C24, respectively, and thereby,
20 (1) A man committing any of the following acts— i. physical contact and advances involving unwelcome and explicit sexual overtures; or ii. a demand or request for sexual favours; or iii. showing pornography against the will of a woman; or iv. making sexually coloured remarks, shall be guilty of the offence of sexual harassment (2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-Section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both. (3) Any man who commits the offence specified in clause (iv) of sub-Section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both. 21 NALSA, supra Chapter I at 9, Para 55. 22 Anamika v. Union of India, W.P. (CRL.) 2537/2018 (17.12.2018- DELHC). 23 Any man who assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine. 24 Any man who watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or
46 | P a g e their sexual privacy can be hampered by their partner or any other member of the society and it becomes important to protect them from such violation by making these offences transgender inclusive; and lastly, the offence of stalking, defined under Section 354D IPC25, should be made gender inclusive as a homosexual, otherwise oppressed and vulnerable class, are prone to stalking by others when they reveal their sexual identity either through personal interactions despite clear disinterest shown by the victim or monitoring the computer or internet activity of the community and thus the offence should be made transgender inclusive.
The sexual minorities are more prone to the offences of voyeurism, sexual harassment, stalking and outraging of their modesty, owing to their sexual preferences, their amble and/or their way of expression, which is unacceptable and considered to be immoral in our society. Owing to the Victorian institutional ideologies, there are also sexually exploited by the police agency and by other individuals holding position of authority and hence the criminal law should be made transgender inclusive.
The historical notion that sexual offences are mechanism of gender subordination and evolved as a part of gender power dynamics is not a sufficient enough case to keep the
subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine. Explanations: 1. For the purpose of this Section, “private act” includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim’s genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public. 2. Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this Section. 25 (1) Any man who— 1. follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or 2. monitors the use by a woman of the internet, email or any other form of electronic communication, commits the offence of stalking; Provided that such conduct shall not amount to stalking if the man who pursued it proves that— 1. it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or 2. it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or 3. in the particular circumstances such conduct was reasonable and justified. (2) Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine.
47 | P a g e law gender specific and not neutral.26 Instead, sexual offences are offences are an act of power irrespective of the gender of the perpetrator or the victim. It might be more dependent on the case or race or economic or social considerations but not solely on the gender. The legal acceptance is of no good until and unless the community is socially accepted. The moral and social condemnation of the sexual offences should extend beyond the hetero-normative standards and should be made gender inclusive.
Also, in furtherance of the individualistic human rights approach adopted by the NALSA and the Navtej Singh Johar decision a positive obligation is imposed the state to protect the rights of the LGBQA community against sexual offences like it does for women and thereby ensuring equal protection of all citizenry without any discrimination on the basis of gender or sexual orientation.27
It is reiterated that even though a non-consensual sexual intercourse against LGBTQA community can be covered within the ambit is Section 377 IPC, but there is no clear mandate of law for the same. In addition to this, such offence even if covered under Section 377 IPC will constitute the offence of Sodomy and not rape. Sodomy is only a form of sexual assault and not all sexual acts against the LGBTQA community can be identified as unnatural offences. This analogy is drawn from Justice Verma Committee Report of 201328 wherein distinct sexual offences were identified that could have been committed against the women and not all sexual offences were included under the umbrella of rape.29 Now that consensual sexual conduct between two consenting adult homosexuals is decriminalised, the other non-consensual sexual offences should be made transgender neutral so as to protect the transgender community and not include all offences against them under the wide umbrella of unnatural offences. It is important to categorise the offence as it is without dilution of all offences against the transgender community under the umbrella of Section 377.30
The insistence is on the amendment of the criminal law on sexual offences provided for under IPC and not enactment of a separate gender neutral legislation for sexual
26 M.P. Singh, Gender, Law and Sexual Assault, ECONOMIC AND POLITICAL WEEKLY, 545 (May 08, 2019, 15:32 PM), https://www.jstor.org/stable/4405177. 27 Supra Chapter IV at 18, Para 4. 28 Supra Chapter V at 21. 29 Supra Chapter IV at 16. 30 Sakshi Raje, Transgender: The Human Rights, LAW TIMES JOURNAL (May 11, 2019, 10:51 AM), http://lawtimesjournal.in/transgender-the-human-rights/.
48 | P a g e offences which even though seems to be convenient, isn’t an ideal way;31 and even if a separate law is enacted, the impact and seriousness associated to it should be same as that of sexual offences under IPC. It heinousness should not be diluted and it should not be deemed as a less serious offence than that under the IPC. The purpose behind gender neutrality of sexual offences under the IPC is not to desexualize the offence but to incorporate a holistic understanding of the nature of the offence beyond the lens of gender.32
Apart from the gender neutrality and transgender inclusiveness of the sexual offense provided for under the IPC, other law governing the criminal domain also have to be amended for holistic recognition of the substantial right of the LGBTQA community.33
It is also imperative to review the Domestic Violence Act, 200534 which addresses to the issues of violence against the partners sharing the same household. The Act was enacted purposively to protect women and children against abuse. Now that the court has decriminalised consensual sexual conduct in private, it which will lead to sharing of households by homosexuals and therefore, it becomes imperative to have an inclusive definition of aggrieved party under the Act so as to include the sexual minorities, in addition to women and children, and render protection against the physical, sexual, psychological and verbal abuse committed against a person belonging to the LGBTQA community and sharing the household with another person. Even though Lesbians are covered within the ambit of the definition of aggrieved party there lacks legal awareness amongst them with respect to the same because of the prolonged exclusion of the community from legislations. Provision to include LGBTQA within the scope of this law and making provisions for ensuring legal assistance to them is crucial step towards the according equal status to the community in the society.
In is also important to review and amend the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and make it
31 Agnes, supra Chapter IV at 17, 844-845. 32 Pathak, supra Chapter IV at 20. 33 Animesh Sharma, Section 377: No Jurisprudential Basis, ECONOMIC AND POLITICAL WEEKLY ( May 14, 2019, 14:33 PM), https://www.epw.in/journal/2008/46/commentary/Section-377-no- jurisprudential-basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e 34 The Protection of Women From Domestic Violence Act, 005, No. 43, Acts of Parliament, 2005.
49 | P a g e transgender inclusive. The legislation was enacted with the objective to ensure a safe working environment for the women, in public or private, in an organised or unorganised sector. However, it does not include sexual minorities within its scope. After the NALSA decision, the LGBTQA community is recognised as third gender existing in the society and the state is obligated to take affirmative action in terms of reservations in education and employment and warrant adequate representation of the community. Resultantly, the workplace shall comprise of three genders – men, women and the third gender and the latter two are the vulnerable genders requiring protection from sexual harassment at workplace. However, the Act in its present form does not include within its scope the sexual harassment faced by the individuals belonging to LGBTQA community at workplace.35 Therefore, it becomes pertinent to take note of the same and owing to the established fact that the sexual minorities belong to the marginalised and vulnerable Section of the society, it becomes significant to amend the law with regard to sexual harassment at workplace and make it transgender inclusive.
While amending the laws, namely, the IPC, the Domestic Violence Act and the Sexual Harassment of Women at Workplace Act, the legislature should take into account the recommendations proposed by Justice Verma Committee. The mere possibility of misuse of law against the vulnerable community should not avert the legislature from making amendments to criminal law and infusing transgender neutrality. Owing to the possibility of sexual assault even against homosexuals, transgender and transsexual rape, the definition of both the perpetrator and the victim should be made transgender inclusive and thereby broadening the scope of prevailing law on sexual offences.
Transgender neutrality of sexual offences is not antithesis to the feminist understanding of sexual offences. 36 Recognition of the LGBTQA community under criminal law pertaining to sexual offences is not a backlash on the feminist principles on sexual offences. In fact, various feminists have acknowledged the victimization of the transgender community and concluded that the commission and punishment of
35 Even men aren't safe from sexual harassment at workplace: Survey, THE ECONOMIC TIMES, August 22, 2010. 36 Rumney, supra Chapter III at 32, 482.
50 | P a g e sexual offence should not be correlated to the gender of the victim. 37 Transgender inclusiveness in criminal law relating to sexual offences does not intrinsically escalate the vulnerability of women rather is a pragmatic recognition of the victimization of the LGBTQA community.
In absenteeism of effectively adequate alternative to address sexual violence against the LGBTQA community and in adherence to the principle of equality before law as laid down in the Constitution, the rationale of transgender neutrality of sexual offences is furthered. It is a coherent understanding wherein rights of each and every victim of sexual offence are catered to without any prioritization based on gender.38 The accused, under the criminal law is punished for the sexual offence that he has committed and not because of the gender of the victim concerned.39
37Id. at 481. 38 Id. at 489. 39 Supra note at 30.
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CHAPTER - VII
CONCLUSION
“History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy ad ostracism that they have suffered through the centuries”1
The LGBTQA community remained to be a marginalised and vulnerable Section of the society for decades. They lacked gender identity and their existence went unacknowledged. The law manifesting Victorian ideologies was retained in the form of Section 377 IPC making the existence of the community in public thorny. The community has remained in the closet for decades and still they and their families have faced sexual assault, violation and exploitation which cannot be undone. The legislature and the executive have failed in their obligation to protect this community from the institutional ideologies at the instance of the police agencies and from the societal perception of their immoral existence.
The Judicial institution, through its decisions in NALSA and Navtej Singh Johar, has attempted progressive realisation of the fundamental and human rights of the community. The court has legitimised their existence as the third gender in the society and further decriminalised consensual sexual conduct between adults in private.
Legal recognition and acceptance of their sexual conduct is of no avail until and unless the laws and the policy framework is instituted so as to encourage the community to come out of the closet with an assurance to protect the sexual citizenship, sexual rights and dignity of the individual members of the community. Presently, the criminal law discriminates between the victims of sexual offences based on their gender; while the sexual offences committed against women are made punishable; those against the LGBTQA community are not even recognised in the statute book.
Additionally, failure on part of the court to associate non-consensual carnal intercourse, between two adults, against the order of the nature as sexual assault has
1 Justice Indu Malhotra, Navtej Singh Johar v. Union of India, (2018) 1 SCC 791, Para 20.
52 | P a g e abridged the aspirations of the community as such acts continue fall within the umbrella of Section 377 of IPC. Such interpretation of law is erroneous and manifestly discriminatory on the anvil of Article 15 of the Constitution and antithetical to the principle of equality enshrined under Article 14 of the Constitution.
The non-categorisation of sexual offences that can be committed against the LGBTQA community as against the specific categorization of offences that can be committed against women is problematic. The victims of similar sexual offences cannot be given discriminatory treatment at the instance of state solely on the premise of the gender identity and sexual orientation of the victim. A sexual assault against LGBTQA community should be punished in a likewise manner and with same impact, seriousness and range of quantum of punishment as in case of women without diluting it under the ambit of unnatural offence.
It is therefore imperative to cause amendment to the existing criminal law provided for under IPC and other laws like the Sexual Harassment of Women at Workplace and the Domestic Violence Act, which fall within the criminal realm so as to recognise that sexual offences can be committed against the sexual minorities and are punishable with the same seriousness regardless of the gender of the victim. The accused, in accordance with Wolfenden Committee Report and the criminal jurisprudence asserted by it, is punished for the sexual offence committed by him and the punishment is not premised on the gender of the victim.
As far as the point of vulnerability is concerned, the LGBTQA community, just as women, are vulnerable to offences of sexual violence, harassment and exploitation as established in the chapter. The community needs ample protection from the state to further their substantive rights as recognised by the judiciary including the right to choice sexual partner and have consensual sexual activities in private.
It is the need of the hour to extend principle of equality and make the existing criminal law transgender inclusive and recognizing the legal space for the community. As per the statistical report issued by Equaldex on homosexual activity, India is one of the 150 countries wherein homosexual activities have been legalised. The decriminalization of sexual conduct between all consenting adults was an awaited step towards the recognition of substantive right of the LGBTQA community.
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Therefore, to conclude, one can say that progressive steps have been taken towards the acknowledgment of the rights of the LGBTQA community however, to ensure penetration of this legal change in the society, questions of civil and criminal realm relating to the substantive rights have to answered at the instance of the legislature at the earliest. Mere decriminalization of consensual sexual conduct between consenting adults does not do justice to the LGBTQA community instead it opens up avenues to be addressed by the legislature to ensure that this marginalised community, its sexual rights, gender identity and orientation is protected by the state. It is the duty of the state to protect individuals, regardless of their gender identity and sexual orientation, from sexual offences, exploitation and violence by enacting separate legislations or amending the existing ones and simultaneously furthering the mandate of the international covenants to which India is a signatory. The state is also under an obligation to ensure that community is not harassed, at the instance of the police agency, while exercising their right to consensual sexual conduct in private. To cherish the liberty so declared in favour of the sexual minorities, it is imperative to extend legal protection to the community against sexual offences and incidentally give them the social acceptance which they were deprived of centuries.
“So long as you do not achieve social liberty, whatever freedom is provided by the law is of no avail to you”
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BIBLIOGRAPHY
Books
1. AMARTYA SEN, The Idea of Justice, MASS: BELKNAP PRESS OF HARVARD UNIVERSITY PRESS, CAMBRIDGE 2009
2. HLA HART, LAW, LIBERTY AND MORALITY, 88 Oxford University Press (1963).
3. JOHN RAWLS, Justice as Fairness, THE PHILOSOPHICAL REVIEW (1958)
4. O’ PHILLIPS, Sexual Offences in Zimbabwe: Fetishisms of Procreation,
Perversion and Individual Autonomy, UNIVERSITY OF CAMBRIDGE, 185 (1999).
5. GAUTAM BHAN, Because I Have A Voice: Queer Politics In India 468 (2003).
6. TARYNN M. WITTEN AND ELLER, Anti-transgender violence: The “Invisible”
Human Rights Violation, PEACH REVIEW: AN INTERNATIONAL QUARTERLY 1 (1999).
Statutes
1. The Buggery Act, 1533 2. The Canadian Human Rights Act, 1985 3. The Constitution Of India, 1950 4. The Criminal Law (Amendment) Act, 2013 5. The Criminal Law (Amendment) Act, 2018 6. The Gender Motivated Violence, Act, 2000 7. The Indian Penal Code, 1860 8. The International Covenant On Civil And Political Liberty, 1967 9. The Protection Of Women From Domestic Violence Act, 2005 10. The Sexual Harassment Of Women At Workplace (Prevention, Prohibition And Redressal) Act, 2013 11. The Sexual Offences Act, 1967 12. The Protection Of Children From Sexual Offences Act, 2012 13. The United Nations Convention Against Torture And Other Cruel Inhuman And Degrading Treatment Or Punishment, 2008
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14. United Nations Human Rights Council, Discriminatory Laws and Practices and Acts of Violence against Individuals Based On Their Sexual Orientation and Gender Identity, HRC/19/41/2011. 15. The Universal Declaration Of Human Rights, 1948 16. Yogyakarta Principles On The Application Of International Human Rights Law In Relation To Sexual Orientation And Gender Identity, 2006
Reports
1. Wolfenden Committee, Report on Homosexuality and Prostitution, (Chairman: Sir John Wolfenden, 1957). 2. People’s Union for Civil Liberties, Report on Human Rights Violation against
the Transgender Community, PUCL-K (May 03, 2019, 17:22 PM), http://pucl.org/sites/default/files/reports/Human_Rights_Violations_against_th e_Transgender_Community.pdf. 3. Ministry of Law, Government of India, Committee on Amendments to Criminal Law (Chairperson: Justice J.S. Verma, 2013). 4. Ministry of Law, Government of India, One Hundred and Seventy Second
report on Review of Rape Laws, LAW COMMISSION OF INDIA (2000).
Journals/Articles
1. Ann P. Haas, Philip L. Rodgers, and Jody L. Herman, Suicide Attempts among
Transgender and Gender-Nonconforming Adults, AMERICAN FOUNDATION
FOR SUICIDE PREVENTION AND THE WILLIAMS INSTITUTE. Retrieved from http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams- Suicide-Report-Final.pdf.
2. Animesh Sharma, Section 377: No Jurisprudential Basis, ECONOMIC AND
POLITICAL WEEKLY. Retrieved from https://www.epw.in/journal/2008/46/commentary/Section-377-no- jurisprudential- basis.html?0=ip_login_no_cache%3D7f2e2da6d0d55a917ff3ebc34c05b74e 3. Alletta Brenner, Resisting Simple Dichotomies: Critiquing Narratives of
Victims, Perpetrators, and Harm in Feminist Theories of Rape, 36 HARVARD
JOURNAL OF LAW & GENDER 503 (2013)
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4. Alok Gupta, Section 377 and the Dignity of Indian Homosexuals, ECONOMIC
AND POLITICAL WEEKLY. Retrieved from https://www.jstor.org/stable/4418926 5. Catherine Taylor, Every Class in Every School: Final Report on the First National Climate Survey on Homophobia, Biphobia and Transphobia in
Canadian Schools, EGALE CANADA. Retrieved from https://egale.ca/wp- content/uploads/2011/05/EgaleFinalReport-web.pdf. 6. California Coalition AGAINST Sexual Assault, Focusing on Pride: Supporting Lesbian, Gay, Bisexual and Transgender (LGBT) Survivours of
Sexual Assault, CALIFORNIA COALITION AGAINST SEXUAL ASSAULT. Retrieved from https://www.calcasa.org/wp-content/uploads/2010/12/LGBT-Part- 1UPLOAD-v2-12.29.10.pdf. 7. Corinne Lennox and Mathew Waites, Human Rights, Sexual Orientation and Gender Identity in the Commonwealth: From History and Law to Developing
activism and transnational dialogues, UNIVERSITY OF LONDON. Retrieved from https://www.jstor.org/stable/j.ctv512st2.5. 8. Dipika Nath, We’ll Show You You’re a Woman: Violence and Discrimination
against Black Lesbians and Transgender Men, HUMAN RIGHTS WATCH. Retrieved from https://www.hrw.org/report/2011/12/05/well-show-you-youre- woman/violence-and-discrimination-against-black-lesbians-and#7335e4. 9. Don Operario, Toho Soma, Kristen Underhill, Sex Work and HIV Status
among Transgender Women: Systematic Review and Meta-Analysis, JOURNAL
OF ACQUIRED IMMUNE DEFICIENCY SYNDROMES. Retrieved from 10.1097/QAI.0b013e31816e3971. 10. Emily F. Rothman, Deinera Exner, Allyson L. Baughman, The Prevalence of Sexual Assault Against People Who Identify as Gay, lesbian or Bisexual in the
United States: A Systematic Review, SAGE JOURNALS. Retrieved from https://doi.org/10.1177/1524838010390707 11. Ending Acts of Violence and Related Human Rights Violations based on
Sexual Orientation & Gender Identity, HUMAN RIGHTS COUNCIL ON LGBT
RIGHTS. Retrieved from https://geneva.usmission.gov/2011/03/22/lgbtrights/. 12. Flavia Agnes, Law, Ideology and Female Sexuality Gender Neutrality in Rape
Law, ECONOMIC AND POLITICAL WEEKLY. Retrieved from https://www.jstor.org/stable/4411809.
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13. Geetanjali Misra, Decriminalizing Homosexuality in India, TAYLOR AND
FRANCIS GROUP. Retrieved from https://www.jstor.org/stable/40647442. 14. Harshad Pathak, Beyond the Binary: Rethinking Gender Neutrality in Indian
Rape Law, CAMBRIDGE UNIVERSITY PRESS. Retrieved from https://www.cambridge.org/core/journals/asian-journal-of-comparative- law/article/beyond-the-binary-rethinking-gender-neutrality-in-indian-rape- law/9BC983FB009B7BBDEB78CED0BC5144C0. 15. Harvey J. Makadon, Ending LGBT Invisibility in Health Case: The First Step
in Ensuring Equitable Care, CLEVELAND CLINIC JOURNAL OF MEDICINE. Retrieved from 10.3949/ccjm.78gr.10006 16. High Court of South Africa (Witwatersrand Local Division): National Coalition for Gay and Lesbian Equality et al. v. The Minister of Justice et al.,
INTERNATIONAL LEGAL MATERIALS. Retrieved from http://www.jstor.org/stable/20698832 17. Jamie M. Grant, Lisa A. Mottet, Justin Tanis, Jack Harrison, Jody L. Herman, and Mara Keisling, Injustice at Every Turn: A Report of the National
Transgender Discrimination Survey, NATIONAL CENTER FOR TRANSGENDER
EQUALITY AND NATIONAL GAY AND LESBIAN TASK FORCE. Retrieved from https://www.thetaskforce.org/injustice-every-turn-report-national-transgender- discrimination-survey/. 18. Jennie Popay, Sarah Escorel, Mario Hernandez, Heidi Johnston, Jane Mathieson and Laetitia Rispel, Understanding and Tracking Social Exclusion,
WORLD HEALTH ORGANIZATION. Retrieved from https://www.who.int/social_determinants/knowledge_networks/final_reports/s ekn_final%20report_042008.pdf?ua=1 19. Jo Beall and Laure-Helene Piron, Department for International Development -
Social Exclusion Review, OVERSEAS DEVELOPMENT INSTITUTE. Retrieved from https://www.odi.org/sites/odi.org.uk/files/odi-assets/publications- opinion-files/2301.pdf 20. Jordi Estivill, Concepts and Strategies for Combating Social Exclusion: An
Overview, INTERNATIONAL LABOUR OFFICE. Retrieved from http://www.ilo.org/public/english/protection/socsec/step/download/96p1.pdf.
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21. K.I.Vibhute, Consensual Homosexuality and the Indian Penal Code: Some
Reflections on Interplay of Law and Morality, JOURNAL OF INDIAN LAW
INSTITUTE. Retrieved from https://www.jstor.org/stable/43953422 22. Karel Blondeel, Violence Motivated by Perception of Sexual Orientation and
Gender Identity: A Systematic Review, BULLETIN OF WORLD HEALTH
ORGANIZATION. Retrieved from https://www.who.int/bulletin/volumes/96/1/17-197251/en/
23. Mark L. Hatzenbuehler, Katie A. McLaughlin, Susan Nolen-Hoeksema, Emotion Regulation and Internalizing Symptoms in a Longitudinal Study of
Sexual Minority and Heterosexual Adolescents, THE JOURNAL OF CHILD
PSYCHOLOGY AND PSYCHIATRY, WILEY ONLINE LIBRARY. Retrieved from https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1469-7610.2008.01924.x. 24. National Coalition of Anti-Violence Programs, Hate Violence against Lesbian,
Gay, Bisexual, and Transgender People in the United States, NATIONAL
COALITION OF ANTI-VIOLENCE PROGRAMS. Retrieved from https://avp.org/wp- content/uploads/2017/04/2011_NCAVP_HV_Reports.pdf
25. Philip N.S. Rumney, In Defence of Gender Neutrality within Rape, SEATTLE
JOURNAL FOR SOCIAL JUSTICE. Retrieved from https://digitalcommons.law.seattleu.edu/sjsj/vol6/iss1/40/
26. Rachana Mudraboyina and L.C. Kranti, A Critiques of the Transgender
Persons (Protection of Rights) Bill, 2018, HUMAN RIGHTS LAW NETWORK. Retrieved from https://hrln.org/wp-content/uploads/2019/01/Critique-of-the- TransBill.pdf. 27. Rebecca L. Stotzer, Violence against transgender people: A review of United
States data, ELSEVIER AGGRESSION AND VIOLENT BEHAVIOUR, Retrieved from https://doi.org/10.1016/j.avb.2009.01.006. 28. Robert Wintemute, Sexual orientation and the charter: The achievement of
formal legal equality, 1985-2005 and its limits, MCGILL LAW JOURNAL, Retrieved from https://heinonline.org/HOL/Page?handle=hein.journals/mcgil49&div=47&id= &page=&t=1558409286&collection=journals&t=1558409286. 29. Robin M. Mathy, Susan D. Cochran, Jorn Olsen, Vickie M. Mays, The Association Between Relationship Markers of Sexual Orientation and Suicide:
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Denmark, SOCIAL PSYCHIATRY AND PSYCHIATRIC EPIDEMIOLOGY. Retrieved from 10.1007/s00127-009-0177-3. 30. Rukmini Sen, Breaking Silences, Celebrating New Spaces: Mapping Elite
Responses to the ‘Inclusive’ Approach, NUJS LAW REVIEW. Retrieved from http://nujslawreview.org/wp-content/uploads/2016/12/rukmini-sen.pdf.
31. Sakshi Raje, Transgender: The Human Rights, LAW TIMES JOURNAL. Retrieved from http://lawtimesjournal.in/transgender-the-human-rights/. 32. Sarah S. Willen, Michael Knipper, Cesar E Abadía-Barrero, Nadav
Davidovitch, Syndemic Vulnerability and The Right to Health, THE LANCET
JOURNAL. Retrieved from http://dx.doi.org/10.1016/S0140-6736(17)30261-1. 33. Simon Bronitt and Ashutosh Misra, Reforming Sexual Offences in India:
Lessons in Human Rights and Comparative Law, GRIFFITH ASIA QUARTERLY. Retrieved from https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2623352 34. Vishakha Choudhary and Vishesh Sharma, The Transgender Persons
(Protection of Rights) Bill, 2018: A Tale of Reneged Promises, OXFORD
HUMAN RIGHTS HUB. Retrieved from http://ohrh.law.ox.ac.uk/the- transgender-persons-protection-of-rights-bill-2018-a-tale-of-reneged- promises/ 35. Zoë D. Peterson, Emily K. Voller, Melissa A. Polusny, Maureen Murdoch, Prevalence and Consequences of Adult Sexual Assault of Men: Review of
Empirical Findings and State of the Literature, CLINICAL PSYCHOLOGY
REVIEW. Retrieved from https://doi.org/10.1016/j.cpr.2010.08.006.
Websites
1. www.scconline.com 2. www.manupatra.com 3. www.ltj.com 4. www.jstor.com 5. www.heinonline.com 6. www.feministlawarchieves.pldindia.org 7. www.equaldex.com 8. www.pucl.org 9. www.economictimes.indiatimes.com
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