Lesbian, Gay, Bisexual and Transgender (LGBT) Rights
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
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
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.
Tara v State,W.P. (CRL) 296/2012 before the High Court of Delhi
In response to an intervention by the Lawyers Collective in W.P. (CRL) 296/2012, the Delhi High Court overturned the forcible detention and transportation of 15 adult sex workers to Andhra Pradesh (“A.P”), terming it illegal and violative of their fundamental rights.
Delivered on 13 April 2012 by a Bench comprising Justice S. Ravindra Bhat and Justice S.P Garg, the decisioncame in the context of a raid conducted by A.P Police in GB Road, Delhi on 20 February, 2012, in which 72 persons were “rescued”. While minor girls were ostensibly treated in accordance with the Juvenile Justice (Care and Protection of Children) Act, 2000, adult women were segregated on the basis of their state of origin – namely, those originally from A.P and those not from A.P. 41 women in the latter category were released by the Metropolitan Magistrate, Tis Hazari, after giving them a hearing. However, the other 15 were directed to be taken toAnantapur district in A.P and kept in temporary detention in Nirmal Chaya/ Nari Niketan home in Delhi, contrary to their will.
The above order was challenged and the High Court stopped the Petitioners’ transit to A.P on 24 February 2012. Consequently, the women stayed in Nirmal Chaya/ Nari Niketan for over 50 days, where they were counseled against returning to sex work. The women, however, expressed their desire to live and work in Delhi and recorded statements to this effect under Section 164, Criminal Procedure Code, 1973.
On 9 April 2012, the High Court sought the views of the National Commission for Women and the Delhi State Commission for Women on offering rehabilitation, but the former’s Counsel sought to keep the “victims” in detention, till such time that their rehabilitation is designed and implemented.
Taking note of the anomalies in the procedure followed by A.P Police and the fact that the Petitioners’ were adult and not accused of any offence, the Court directed that the women be set free. In doing so, the Bench made the following important observation:
“…this Court is of the opinion that the coercive manner in which the police dealt with the victims are offensive of their rights under Articles 14 and 21 of the Constitution of India. In a rights based society like ours, the mandate of these guarantees is constant and unaltered in content without any regard to the general or any of the other traditionally perceived differences that human beings see amongst themselves. This Court also is of the opinion that the order to the extent it virtually ordered transportation, without consent, of petitioners amounts to treating them as less than human beings and belittling their dignity.”
The decision marks a first step towards the protection of rights of adult sex workers, which are often undermined in aggressive anti-trafficking measures.
Read the Delhi High Court’s decision HERE.
Budhadev Karmaskar v. State of West Bengal, Criminal Appeal No. 135 of 2010 in the Supreme Court of India
This case has arisen out of a criminal appeal in the Supreme Court wherein the accused, Budhadev Karmaskar, was convicted for murdering a sex worker in Calcutta in 1999. While dismissing the appeal and affirming the conviction in February, 2011, the Supreme Court suo motoconverted the appeal into public interest litigation a on the rehabilitation of sex workers. The Court observed that “the prostitutes also have a right to live with dignity under Article 21 of the Constitution of India since they are also human beings and their problems also need to be addressed”. It further noted that“a woman is compelled to indulge in prostitution not for pleasure but because of abject poverty. If such a woman is granted opportunity to avail some technical or vocational training, she would be able to earn her livelihood by such vocational training and skill instead of by selling her body.”
Accordingly, the Supreme Court directed “the Central Government and all the State Governments to prepare schemes for giving technical/vocational training to sex workers in all cities in India.” The Central Government and the State Governments were asked to submit their responses to the same.
Subsequently on 4th May, 2011, the Supreme Court impleaded Durbar Mahila Samanwaya Committee (DMSC), a sex worker’s organization and its affiliate, Usha Multipurpose Cooperative Society (USHA) from Kolkata, as parties to the case and sought their views on the subject of rehabilitation of sex workers. Read the affidavits filed by DMSC and USHA and an additional affidavit filed by DMSC, who are being represented in Court by the Lawyers Collective.
On 19th July 2011, the Court set up a Panel to assist and advice it. The Panel consisted of the following members:
The Supreme Court held that “Mr. Jayant Bhushan, learned senior counsel, who is also Amicus Curiae in this case, has submitted that there are broadly three aspects of the matter :-
(1) Prevention of trafficking,
(2) Rehabilitation of sex workers who wish to leave sex work, and
(3) Conditions conducive for sex workers who wish to continue working as sex workers with dignity.
These aspects may be studied by the Panel and they may make suitable suggestions to the Court.”
The Court also directed the States, Union Territories and the Union of India to carry out a survey to ascertain how many sex workers wanted rehabilitation and to find out a mechanism for the same and how many of them would voluntarily continue to engage in sex work and report the findings of the survey to the Panel.
Further, on 2nd August 2011, the Supreme Court the Central Government and the State Governments to provide funds and infrastructure for the Panel to discharge its functions properly. The Court also criticized the Governments’ affidavits, as being vague and general. Instead, it wanted the States to come up with concrete results, i.e., the exact numbers of sex workers who had been offered alternative employment. Meanwhile, the Court reiterated that “any rehabilitation of the sex workers will not be coercive in any manner and it shall be voluntary on the part of the sex workers.”
Thereafter, on 24th August 2011, the Court further noted that “from a perusal of the UJWALA Scheme it appears that the Central Government has scheme only for rescued trafficked women but no scheme for those sex workers who voluntarily want to leave the sex trade. In our opinion, proper effective scheme should be prepared for such women also. In this connection, we would like to say that the Central Government scheme has placed a condition that the rescued sex workers must stay in a corrective home in order to get technical training. In our opinion, no such condition should be imposed as many sex workers are reluctant to stay in these corrective homes which they consider as virtual prison.
The Supreme Court also suggested that free legal services be provided to sex workers through the State Legal Services Authorities.
Accepting the recommendations made by the Panel, the Supreme Court by its order dated 15th September, 2011 asked the government authorities to ensure that sex workers do not face difficulties in accessing identity documents like ration cards and voter identity cards and that their children are not discriminated against in admissions in government and government-sponsored schools. In accordance with the Court’s order dated 24.08.2011, the Central Government was also directed to suitably alter and widen the Ujjawala scheme.
Thereafter, the Supreme Court in January, 2012 directed the Panel to take up the National Capital Territory of Delhi (NCT) as a model for identifying the issues involved in the rehabilitation of sex workers. In March, 2012, it also directed joint secretaries of various government departments to present their views on the questions involving rehabilitation of sex workers’ children. . In April, 2012, the Supreme Court directed the Panel to convene a joint meeting with the representatives of different government agencies including National Aids Control Organisation (NACO) on 6th May, 2012 so that “various issues for providing relief to the sex workers and their children and their rehabilitation, may be discussed in detail and solutions may also be suggested as to how these issues can be tackled, especially, those relating to the children of the sex workers.”
Meanwhile, the Panel has held several meetings from July 2011 onwards to discharge its mandate, as per the Court’s order. It has engaged with various stakeholders like NGOs, police officials, bureaucrats and sex workers and held four regional workshops and one national workshop on rehabilitation of sex workers. The Panel’s Chairman has submitted six interim reports to the Apex Court so far. The sixth interim report dated 22nd March, 2012 notes that “on rehabilitation, two views emerged:
In April 2012, the Government of India filed an affidavit in the Supreme Court, expressing its concerns over the third aspect of the Panel’s mandate, i.e., creating conditions conducive for sex workers who wish to continue working as sex workers with dignity, on the ground that it would indirectly imply recognising sex work as legitimate work. The affidavit further notes that dilution of address verification procedures for facilitating identity cards for sex workers involves national security implications, as a large number of sex workers are illegal migrants from Nepal and Bangladesh.
In response, DMSC filed a counter affidavit, arguing that sex work is not illegal and that sex workers’ are entitled to participate in decisions affecting their lives.
By its order dated 26 July 2012, the Supreme Court affirmed DMSC’s membership to the Panel and modified the third terms of reference to read:- “Conditions conducive for sex workers to live with dignity in accordance with the provisions of Article 21 of the Constitution.”
The orders of the Supreme Court can be found at http://courtnic.nic.in/supremecourt/casestatus_new/caseno_new_alt.asp