‘Social Equality and LGBT Rights’

Submitted by
ANKIT CHOUBEY
Division- D. PRN-17010223069 Batch-2017-2022

OF
Symbiosis Law School, NOIDA
(Symbiosis International University, PUNE)

In
August,2017

Under The Guidance Of

Miss Meera Mathew

(ASSISTANT PROFESSOR)

Symbiosis Law School, NOIDA

(Symbiosis International University, PUNE)
 ‘Social Equality and LGBT Rights’

Appendix ‘B’ – Certificate

CERTIFICATE

The project entitled ‘Social equality and LGBT rights’ submitted to the Symbiosis
Law School, NOIDA for Law of Torts, MV Accident and Consumer Protection Laws
I as part of Internal assessment is based on my original work carried out under the
guidance of Miss Meera mathew from July to September. The research work has not
been submitted elsewhere for award of any degree. The material borrowed from other
sources and incorporated in the thesis has been duly acknowledged. I understand that I
myself could be held responsible and accountable for plagiarism, if any, detected later
on.

Signature of the candidate

Date: 29/08/2017

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 ‘Social Equality and LGBT Rights’

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to our Director, Dr C.J.

Rawandale who gave me the golden opportunity to do this wonderful project that
also helped me in learning research methodologies and interesting topics. I also
extend my gratitude to our Project Guide, Miss Meera Mathew who assisted me in
compiling the project.

Secondly, I would like to thank my seniors who assisted me in finalizing this

project within the limited time frame. Furthermore, I would also like to acknowledge
with much appreciation the crucial role of the staff, who gave the permission to use all
required equipment and the necessary materials to complete the task.

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 ‘Social Equality and LGBT Rights’

INDEX

Introduction 5
Objective 6
Research questions 6
Conclusion 10
Bibliography 11

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INTRODUCTION

LGBT is the most commonly used acronym for the lesbian, gay, bisexual and
transgender community. It is also used as an umbrella term for heterosexual and a
wide variety of other acronyms like “I” is added to include intersex i.e. people with
characteristics of both genders, and a “Q” for people who identify simply as queer i.e.
the ones who are not sure about their sexual orientation and gender identity. There are
other communities also like asexual (people who are not attracted to anyone in a
sexual manner), pansexual (people who are attracted all or wide variety of genders)
and non-binary (people whose gender identity is not exclusively masculine or
feminine). 1

As the law has evolved through the various stages, the rights of the LGBT community
are still at stake. The struggle from natural law which was based on customs and
tradition, termed acts of the community as ‘immoral’ to the 20th century England
which started to recognize rights of the community. Religion that forms the base of
the society also played a crucial as it inspired to term the acts of the community as
‘unnatural offences’.

Equality is recognized by the Constitution of India as Fundamental right under article

14 of Indian Constitution which states “The State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of
India.” 2 The state also imposes certain restrictions with respect to the classes and
categories. Regardless of the fact the state gives equal status to the citizens of the
country and provides them equal protection of laws. In the recent scenario our country
is providing rights to transgender, also giving reservations for the encouragement. As
per the recent judgment on Right to privacy (article 21 of constitution of India) by
honorable Supreme Court of India, rights of the homosexuals (which concerns section
377 of Indian Penal Court) in the case JUSTICE K S PUTTASWAMY (RETD.), AND
ANR. V. Union of India 3 held that sexual orientation is an essential part of one's

1
Arwen Armbrechet,”Explainer: the state of LGBT rights today” The world Economic
Forum(29/7/2017, 18:48IST) www.weforum.org/agenda/2016/01/explainer-the-state-of-lgbt-rights-
today
2
Contitution of India,1950
3
WRIT PETITION (CIVIL) NO 494 OF 2012

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identity and that LGBT rights are "real rights" founded on sound constitutional
doctrine which inhere in the right to life and dwell in privacy and dignity.4

OBJECTIVE

Throughout the history, the homosexual or LGBT community has been deprived of
their basic right. This research work will focus on the right of LGBT from a
jurisprudential angle with Hart and Fuller debate. In order to examine the loopholes,
the analysis would be on assessing the term ‘LGBT’ and their rights as citizens under
the Constitution. Further, this research work unfolds the case laws on Homosexuality
in India and designs to bring forth with the certain suggestion that could be taken for
the betterment of the community.

RESEARCH QUESTIONS

 Whether gender injustice and inequality prevails for LGBT community? If so

what are the important jurisprudential theories that can be applied?

Discrimination and inequality faced by gays and lesbians in the world is

widespread, and many modern theorists researching queer theory has recognized
the social movement to end such discriminatory practices. The issues like modern
gay rights movement are intertwined with the principle of equality and fairness
but some segments of the society stays isolated from the issue and others induces
crime, hatred, violence, heterosexist hatred against homosexuals . For many gay
and lesbian elders, the invisibility and isolation that they face in their later years
are, unfortunately, familiar territory. Stonewall5 was a defining moment in gay
and lesbian history that marked a significant change in the way homosexuals
defined themselves. As members of the pre Stonewall generation, gay and lesbian
elders are well acquainted with the themes of estrangement, alienation, and
secrecy.

Renowned philosophers gave their views on homosexuality in mid-20th century

like H.L.A. Hart (a positivist) and Patrick Devlin (a naturalist). Wolfenden
Committee had to prepare a report on issue of legalizing homosexuality and
prostitution. The Report came in favor of legalization as it stated that the law
need not concern itself with immorality. HLA Hart and Lord Devlin took part in

4
ibid
5
Stonewall riots, also called Stonewall uprising, series of violent confrontations that began in the
early hours of June 28, 1969, between police and gay rights activists outside the Stonewall Inn, a gay
bar in the Greenwich Village section of New York City. As the riots progressed, an international gay
rights movement was born.

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the debate. The primary reason for decriminalization of homosexuality was on

basis of privacy of morality and freedom of choice.

Hart warned against the dangers of “populism” and was against the view of
imposing majoritarian perception of morality over the remaining members of the
society. He questioned why should the conventional morality of a few members
of the population be justification for preventing people doing what they want?
Hart followed Mill's "harm principle” which stated “No act should be interfered
with it unless it affects the rights of another person” This is based on the theory
that most people's views are coloured by superstition and prejudice. Hart also
pointed out that disintegration of the society is not a result of mere changes in
moral view.

Devlin stated “law without morality destroys freedom of conscience and is the
paved road to tyranny”. Devlin appealed to the idea of society's "moral fabric"
which the society holds together. He also argued that the criminal law must
respect and reinforce the moral norms of society in order to keep social order
from unraveling. Devlin’s view was that any category of behavior was capable of
posing a threat to social cohesion. Therefore, morals laws are justified to protect
society against the disintegrating effects of actions that undermine the morality of
a society. Devlin suggested that common morality could be determined from
asking ‘what is acceptable to the ordinary man, the man in the jury box, who
might also be called the reasonable man or the right minded man’.

Devlin essentially emphasized of three guidelines

o Privacy should be respected.

o Law should only intervene when society won't tolerate certain behavior.
o Law should be a minimum standard not a maximum standard.

 Whether the re crimination of section 377 of Indian penal code justified by

the supreme court of India? What is Its legal history and present scenario?

Section 377 of IPC broadly covers Crimes sodomy, incest and homosexuality.

377 Vis-à-vis Homosexuality

The offence of sodomy was introduced in India on 25/7/1828 through the act for
improving the administration for Criminal Justice in the East Indies. “Sodomy” –
“And it be enacted, that every person convicted of the abominable crime of buggery
committed with either any animal, shall suffer as a felon”.6

6
Suresh kumar Kaushal v. NAZ Foundation, (2014) 1 SCC 1

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The I.P.C along with Section 377 as it exists today was passed by the Legislative
council and the Governor General assented to it on 6/10/1860. The understanding of
acts which fall within the ambit of section 377 has changed from non-procreative to
imitative of sexual intercourse Lohana Vasantlal v. State7 to Sexual perversity Mihir
v. Orissa.8

Right to live with dignity has been recognized as a part of Article 21 and the matter
has been dealt with in Francis Coralie v. Administrater, union territory of Delhi and
Ors9.There have been arguments in court throughout the 19th century and early 20th
century on the ground that section 377 has been used to penetrate harassment,
blackmail and torture on certain persons, especially belonging to LGBT community.
This treatment neither mandated by the section nor nor condomed by itand the mere
fact that the section is being misused by the police authorities and others is not a vires
of the section. The law in this regard is discussed and clarified succinctly in Sushil
kumar sharma v. Union of India and ors.10With refrence to Mafatlal industries LTD
and ors v. union of India11 and State of Rajesthan v. Union of India12 judiciary in its
anxiety to protect the so-called rights of LGBT persons to declare that section 377,
I.P.C violates the right to privacy, autonomy and dignity. The constitutional validity
of section 377 was challenged in the Delhi High Court in the case of Naz Foundation
v Government of Delhi & Ors.13 In this case it was argued that Section 377 on account
of covering consensual sexual intercourse between two adults in private, is violative
of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution.
It was also contended that Article 21 can be curtailed only in case of compelling state
interest which is missing in this case. 14 This order of the Delhi High Court was
challenged before the Supreme Court in the case of Suresh Kumar koushal and
another v Naz Foundation & others 15 , Supreme Court ruled out the previous
judgment. But in the recent judgment of JUSTICE K S PUTTASWAMY (RETD.), AND

7
AIR 1968 GUJ 352
8
1991 CrLJ 488
9
(1981) 1 SCC 608.
10
[1956] 29 ITR 349 (SC)
11
1997 (89) ELT 247 (SC)
12
[1978] 1SCR 1
13
(2010) Cri LJ 94 (Delhi).
14
ibid
15
AIR 2014 SC 563.

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ANR. V. Union of India16 In paras 123, 124 and 128 of the judgement the judges show
their disagreement with the judgement delivered by the 2-judge bench in 2013. For
avoiding the ambiguity in the matter cases will be filed and judiciary will clarify the
judgement in relation to rights of homosexuals.

 What are the rights awarded to LGBT community in India and other
countries?

Laws affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by
country or territory—everything from legal recognition of same-sex marriage or other
types of partnerships, to the death penalty as punishment for same-sex
romantic/sexual activity or identity. LGBT rights are considered human rights by
Amnesty International and civil rights by some. Countries like Canada, USA, Maxico,
South Africa, Argentina, Netherland, U.K., and Spain have passed legislation in
concerned to the following giving those basic rights of humanity.

LGB Anti-
Same- Adoption allowed discrimination
Recognition Same- Laws concerning
sex by same- to serve laws
of same-sex sex gender
sexual sex openly concerning
unions marriage identity/expression
activity couples in sexual
military? orientation

The following tells about which countries are most safe and legally healthy for LGBT
community

16
Supra note 3

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In our country only transgender community has been recognized by the law. In
transgender individuals cannot adopt and laws on same sex is an issue since Indian
Penal Code, 1860.

Conclusion

Equality is universal, fundamental in its very core; social equality due to delusional
perception of the people results chaos. It is the belief of the people that deprives
others from their rights, it is the perception of the society which makes suffer
particular section, deprive them from social conduct, and treat as outcast. LGBT
community has suffered through every phase of legal system. They have been
deprived of their fundamental rights and social status. Our country have not
recognized rights for homosexuality and many rights of transgender but the battle is
still being fought. The recent judgement of JUSTICE K S PUTTASWAMY (RETD.),
AND ANR. V. Union of India17 has broadened the scope of the homosexual issue. As
rightly argued by Hart against imposing the popular will on the individual , the state is
framing laws for every individual of each section of the society. Though there are
advocacies for LGBT community on international level like (DADT) Don’t Ask
Don’t Speak that will eventually make society realize that LGBT community is also
the part of the society and should not be treated like outcasts.

17
Supra note 3

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Bibliography
1. Hart, H. L. (2007). The Concept of law. Oxford University Press.

2. Jethmalani, R., & Chopra, D. S. (2014). The Indian Penal Code. Thomso Reuters legal.

3. Knauer, N. J. (2011). Gay and Lesbain Elders. Ashgate Publishing Company.

4. Singvi, D. M., & Swarup , J. (2013). Jagadish Swarup Constituion of India. Thomson
Reuters.

5. Thomas, J. T., & Alam, J. (2016). R A NELSON'S INDIAN PENAL CODE. LexisNexis.

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