Law and Sexuality

Lesbian, Gay, Bisexual and Transgender (LGBT) Rights

Background

The term LGBT is a loose acronym denoting lesbians, gays, bisexual and transgenders and is inclusive of all forms of diverse sexualities. The operation of Section 377, Indian Penal Code (1860) that criminalised all forms of non-peno vaginal sexual acts, till recently, remained the biggest impediment to the full expression of sexuality and personhood of LGBTs. In July, 2009, the Delhi High Court in the Naz Foundation v. Government of NCT, Delhi and Others (160 DLT 277) decriminalized adult consensual same sex relations in private, thereby paving the way for the recognition of constitutional rights of equality, liberty and dignity of LGBT persons.

Section 377, IPC was ostensibly applicable to both heterosexuals and homosexuals but it was mostly used as a tool by police to harass, extort and blackmail men having sex with men. It also prevented homosexual men from seeking legal protection; for fear that they would themselves be penalized for sodomy. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all non-peno vaginal sexual acts under the vague rubric of ‘unnatural offences’.

In 2001, the Lawyers Collective on behalf of Naz Foundation (India) Trust, an NGO working on male sexual health and sexual minorities, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violating right to equality, right to non-discrimination, right to freedom of expression, right to life and personal liberty that included right to privacy, dignity and health. In July 2009, the Delhi High Court held that “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. ” Read more

15 Special Leave Petitions (SLPs) have been filed against the High Court’s decision in the Supreme Court of India. The Government of India has, however not filed an appeal. A few interventions in support of the judgment have also been filed. On behalf of Naz, the Lawyers Collective has filed a comprehensive counter affidavit against the SLPs. The matter is scheduled to be heard on 19th April 2011.

In another case, the Lawyers Collective moved the Allahabad High Court to defend the right to equality and non-discrimination of a gay University Professor. Read more

Besides, the Unit provides legal aid and representation to lesbian and transgender persons, who predominantly complain of intimidation and violence by the family, gender discrimination including access to sex re-assignment and detention on charges of begging or causing public nuisance. The Unit also conducts sessions on law and rights of LGBT persons, on request

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Section 377, Indian Penal Code, 1860 (hereinafter ‘IPC’) was enacted by the British colonial regime to criminalise ‘carnal intercourse against the order of nature’. It was rooted in the Judeo-Christian religious morality that abhorred non-procreative sex.

Section 377, IPC reads as:

“377. 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.”

Lacking precise definition, Section 377 became subject to varied judicial interpretation over the years. Initially covering only anal sex, it later included oral sex and still later, read to cover penile penetration of other artificial orifices like between the thighs or folded palms. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all penile-non-vaginal sexual acts under the vague rubric of ‘unnatural offences’

Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising their sexual expression and identity. Besides, the society too identified the proscribed acts with the homosexual men, and the criminalisation had a severe impact on their dignity and self-worth. Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and prevented them from seeking legal protection from violence; for fear that they would themselves be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence around homosexuality and resulted in denial and rejection at home along with discrimination in workplaces and public spaces.

The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in the field of HIV prevention amongst homosexuals and other men having sex with men (MSM), realised that Section 377, IPC constituted one of the biggest impediments in access to health services for MSM. MSM remained a hidden population due to fear of prosecution under the law. Through its interactions with clients, Naz Foundation became acutely aware of the disproportionate and invidious impact of Section 377 on homosexuals.

Writ Petition in the High Court of Delhi

Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. [Writ Petition (Civil) No. 4755 of 2001]

In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right to privacy, dignity and health under Article 21, equal protection of law and non-discrimination under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. Notice was issued to Union of India in 2002 and the Attorney General was asked to appear. The Ministry of Home Affairs filed an affidavit opposing the petition in September, 2003. The petition was dismissed by the High Court on 02.09.2004 for lack of cause of action as no prosecution was pending against the petitioner.

The Petitioner filed a review petition (RP 384/2004) in the High Court against the order of dismissal but that too was dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed a Special Leave to Appeal (C.N. 7217-18/2005) in the Supreme Court of India in 2005. On 03.02.2006, the Supreme Court passed an order holding that “the matter does require consideration and is not of a nature which could have been dismissed on the ground afore-stated”. Remitting the matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in July, 2006.

Thereafter, the final arguments in the matter ensued in November, 2008 before the division bench of Chief Justice of Delhi High Court A.P. Shah and Justice S. Muralidhar.

On 02.07.2009, the Delhi High Court passed a landmark judgment holding Section 377 to be violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual acts of adults in private. Read the judgment here

Appeal Proceedings in the Supreme Court of India

Suresh Kumar Koushal & Ors. v. Naz Foundation (India ) Trust & Ors.[Special Leave Petition (Civil) No. 15436 of 2009]

Following the High Court decision, 15 Special Leave Petitions (SLPs) were filed in the Supreme Court appealing against the said decision on behalf of mostly faith-based and religious groups from all parts of India. 7 intervention applications (I.A.s) were also filed; out of which, 5 I.A.s were in support of the High Court judgment while 2 I.A.s were against the decision. Importantly, the Union of India did not appeal against the judgment and the Supreme Court too did not grant a stay on the operation of the same. In February, 2012, final arguments began in this matter before the division bench of Justice G.S. Singhvi and Justice S.J. Mukhopadhyay and continued till the end of March, 2012. Mr. Anand Grover, Senior Advocate and Director, Lawyers Collective argued on behalf of Naz Foundation (India) Trust and defended the Delhi High Court decision. The judgment is currently awaited.

Please find the following documents below:

Written Submissions on behalf of Naz Foundation (India) Trust in the Supreme Court

Record of Proceedings in the Supreme Court of India

Allahabad High Court stays suspension of AMU Professor

1 April 2010, Allahabad: In a case that stands to test the promise of equality to homosexuals held out by the Delhi High Court last year, a division bench of the Allahabad High Court stayed the suspension of Prof. Shrinivas Ramchandra Siras, Reader and Chair of the Department of Modern Indian Languages at Aligarh Muslim University (AMU) on grounds of alleged immoral conduct.

64 year old Siras, who is gay and has not concealed his sexual orientation, has been teaching at AMU for 22 years. He is due to be designated Professor since 2006. On 8 February 2010, three persons claiming to be television reporters barged into Siras’s house at the AMU campus and photographed Siras with his male friend. Minutes later, senior AMU staff entered the house and took the camera and photographs. Siras was suspended the next day and directed to vacate his official residence. He was also asked not to leave Aligarh until completion of inquiry by the university. Suspension meant that he lost the position of Chair of the Department of Modern Languages and could not apply for professorship. Two weeks later, AMU sent an [article of charge] alleging that Siras “has committed act of misconduct in as much as he indulged himself into immoral sexual activity and in contravention of basic moral ethics while residing in …, A.M.U. Aligarh thereby undermined pious image of the teacher community and as a whole tarnished the image of the University”.

In his reply, Siras denied the allegations and instead, complained of breach of privacy and unauthorized invasion of his house. Siras also challenged his suspension and eviction from residence before the Allahabad High Court. Siras accused AMU of violating his fundamental rights to privacy, dignity and equality and subjecting him to discrimination on account of his homosexuality.

On 1st April 2010, the case was heard by Justices Sunil Ambwani and K.N Pandey of the Allahabad High Court. Siras’s lawyer Anand Grover, asserted that neither his sexual orientation nor sexual activity in the privacy of his home interfere with his duties as a teacher and therefore, do not constitute misconduct. Further, Grover contended that such private matters are entitled to protection, something which the AMU disregarded while orchestrating the incident of 8 February. Counsel for AMU objected to the petition and stated that the petitioner must exhaust remedies provided in the AMU Act, 1920 before claiming relief through a writ.

Granting an injunction to the petitioner, the Court stayed the suspension, the order to vacate premises and not to leave Aligarh. Importantly, the Court noted that “the right of privacy is a fundamental right, needs to be protected and that unless the conduct of a person, even if he is a teacher is going to affect and has substantial nexus with his employment, it may not be treated as misconduct.” The Court also held that Siras is entitled to apply for Professorship. It directed the respondent – AMU to complete the inquiry expeditiously, in accordance with law. The Court further restrained the media from publishing or commenting on the incident of 8 February.

AMU has three weeks to file its response.

View the Petition HERE

View the Order HERE.

Naz Foundation judgment of the Delhi High Court

Background

Historically, sex work was neither condemned nor criminalized in India. Sex workers were treated with respect and reverence in ancient times, tolerated in the medieval period and medically regulated during colonial rule. Presently, female, male and transgender sex workers are confronted with the punitive regime of the Immoral Traffic (Prevention) Act (ITPA), 1956. The ITPA was enacted following India’s ratification of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949). Previously known as the Suppression of Immoral Traffic in Women and Girls Act (SITA), the Act does not criminalise prostitution per se, but proscribes nearly every activity related to commercial sex.

Offences under ITPA include brothel keeping, living on earnings of sex work, procuring, inducing or detaining for prostitution, with or without consent, prostitution in areas notified by Police and near public places and soliciting. Penalties are higher for crimes involving children (<16 yrs) or minors (< 18 yrs). All offences are cognizable, that is, Police do not require a warrant to arrest or investigate.  ITPA also accords wide powers to search, remove detain and evict sex workers, under the purview of ‘rescue and rehabilitation’. Read More 

Studies have shown that instead of protecting women, ITPA has been used primarily against female sex workers on charges of soliciting. The embargo on brothel keeping has pushed sex workers onto the streets or other dangerous sites. Frequent raids disrupt HIV intervention services by creating fear amongst sex workers, resulting in their dislocation or involuntary detention in ‘protective’ homes. Sex workers are prevented from supporting their families, including children above the age of 18, who risk being arrested for living on sex work money.  There is an urgent need for sex work law reform, a demand that the Unit is raising together with sex workers’ organizations. Read more and view Press Release Here

In 2006, the Government of India proposed to amend the ITPA by introducing the Immoral Traffic (Prevention) Amendment Bill, 2006 in the Lok Sabha. Though purporting to decriminalize soliciting, it sought to criminalize clients of sex workers by making any person who visited or was found in a brothel liable to punishment. Modeled on the Swedish Law on Prohibition of Purchase of Sexual Services, 1999, the ITPA Amendment Bill was vigorously opposed by sex workers. Owing to its contentious provisions, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development and later, Group of Ministers. The Lawyers Collective intervened in the legislative process, submitting critiques and mobilizing community and civil society pressure against further criminalization of sex work. The stringent criticism on legal, political and public health grounds resulted in divergence of opinion within the government. Consequently, the ITPA Amendment Bill lapsed in February, 2009. Read more

Internationally, there are different legislative approaches to sex work. The Lawyers Collective sought to examine these models in terms of their impact on sex workers’ lives as well as HIV transmission in paid sex. Read more

The Lawyers Collective was on the Inter Ministerial Group (IMG) constituted by the Ministry of Women and Child Development in September 2012 to consider amendments to the Immoral Traffic (Prevention) Act, 1956. Read our submissions on the law and comments on the draft IMG Report here. Protecting Sex Workers’s Privacy Sex workers routinely experience harassment and abuse at the hands of media persons, especially during police raids and arrests. Their photographs are flashed in local newspapers and television channels, thereby revealing their identities and subjecting them and their families to stigma and ostracisation. In this regard, the Lawyers Collective, along with a delegation of sex workers, approached the Press Council of India (PCI)and made submissions seeking redress. ____________________________________________________________________________________________________________________
Anti- Rights Practices in HIV Prevention In recent times, HIV prevention interventions targeting sex workers, persons who inject drugs, men having sex with men and transgender persons have taken on coercive tactics, especially in HIV testing and sharing of clients’ personal information. The Lawyers Collective, together with representative community organizations criticized ‘target based testing’ and ‘line listing’ for violating autonomy and privacy and eroding trust in government programmes. Read more

In 2005, the then Department of Women and Child Development (WCD), Ministry of Human Resource Development, Government of India proposed changes to the ITPA. The WCD failed to consult sex workers and AIDS service organisations in the process. The National AIDS Control Organisation (NACO) and Health Ministry too, did not appear to have been consulted. Protesting their exclusion, sex workers from across the country, marched to the Parliament on 8th March 2006 and resisted amendments to the ITPA. The Lawyers Collective HIV/AIDS Unit tracked these legislative developments and opposed the proposed Bill.

Notwithstanding the protests, the Ministry of WCD introduced the Immoral Traffic Prevention Amendment Bill in Parliament on 22nd May 2006. The Bill included several contentious provisions, including a new Section 5C that penalises persons visiting brothels. Given lack of consensus, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development for scrutiny. Intervening in the legislative process, the Lawyers Collective HIV/AIDS Unit submitted both written and oral submissions critiquing the Bill. The Unit had also convened community consultations to update sex workers’ and facilitate collective action against the Bill.

On 23rd November 2006, the Parliamentary Standing Committee presented its findings as the 182nd Report on ITPA Amendment Bill, which the Unit critiqued.  The WCD revised the ITPA Bill, which came up for Cabinet approval on 6th September 2007.

On 5th November 2007, the Lawyers Collective HIV/AIDS Unit organized a National Consultation on Sex Work, HIV and the Law in New Delhi. The meeting brought together leading health and HIV agencies, community based organizations and experts from government, non-government and international development sectors to discuss how the changes proposed to the Immoral Traffic (Prevention) Act, 1956 would affect HIV prevention among sex workers and clients under the National AIDS Control Programme. A statement of concern from the national consultation was released.

Owing to a lack of consensus, the Union Cabinet referred the Immoral Traffic (Prevention) Amendment Bill, 2007 (“revised Bill”) to a Group of Ministers (GOM) for further consideration. The stringent criticism on legal, political and public health grounds resulted in divergence of opinion within the government. Consequently, the ITPA Amendment Bill lapsed in February, 2009.

Poster on Sex Work and Trafficking, 2010