Madras High Court on Monday directed the Union Ministry of Social Justice and Empowerment to enlist non-governmental organisations (NGOs) that could provide counseling, monetary support, legal assistance and protection to lesbian, gay, bisexual, transgender, queer, intersex, asexual and such others’ (LGBTQIA+) community until a law could be enacted to protect them.
Backdrop to the Judgment
A writ petition was filed by two young women who had fled from Madurai to Chennai because their parents were opposed to their relationship. Madras High Court directed the Madurai police to keep their hands off the issue and penned down an elaborate judgment for the protection of rights of LGBTQIA community.
Directions of Madras High Court
Ministry of Social Justice and Empowerment to upload the details of the NGOs, along with their
address, contact details and the services provided by them, on its website within eight weeks and
revise the information periodically. Any person from LGBTQIA+ community who has faced an issue can approach any of the enlisted
NGOs for safeguarding their rights. In order to provide need based relief to people from LGBTQIA+ community, NGOs should also
coordinate with the police with respect to offences committed against them. NGOs, in consultation with the Ministry, should maintain confidential records of such persons who approached them and the aggregate data be submitted to the Ministry bi-annually. The court further ordered that appropriate changes be made to the existing government short stay homes, anganwadi shelters, Garima Greh (shelter home for transgender persons) for providing accommodation, food, medical care and recreational facilities to those from the community in need of such assistance. The Ministry was directed to create the infrastructural requirements within 12 weeks. The Court further ordered to carry out sensitisation programmes for stakeholders, including police and prison authorities, judges, physical and mental health professionals, educational institutions, health workers, public and private workplaces.
PROBLEM FACED BY LGBTQRIV+ COMMUNITY
Lesbian, gay, bisexual and transgender people are more likely to experience intolerance, discrimination, harassment, and the threat of violence due to their sexual orientation, than those that identify themselves as heterosexual. This is due to homophobia (the fear or hatred of homosexuality). Some of the factors that may reinforce homophobia on a larger scale are moral, religious, and political beliefs of a dominant
group .Lesbian, gay, bisexual, transgender (LGBT) people face tremendous difficulties growing up in a society where heterosexuality is often presented as the only acceptable orientation and homosexuality is regarded as deviant. They continue to face discrimination and exclusion across the world in all spheres of life. In the labour market, a majority of LGBT people continue to hide their sexual orientation or to
endure harassment out of fear of losing their job. Particularly vulnerable are young LGBT people who experience estrangement from family and friendship networks, harassment at school and invisibility, which can lead in some cases to underachievement at school, school drop-out, mental ill-health and homelessness. discrimination not only denies LGBT people equal access to key social goods, such as employment, health care, education and housing, but it also marginalizes them in society and makes them one of the vulnerable groups who are at risk of becoming socially excluded.
Section 377 of IPC
Homosexuality was criminalised in India under Section 377 of the Indian Penal Code, a relic enacted by British rulers in 1861, which had described same sex acts as &;carnal intercourse against the order of nature& and allowed for jail terms of up to 10 years. Section 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 10 years, and shall also be liable to
Important Highlights of the 2018 SC Judgment
Indian Constitution in Changing Times
The rights that are guaranteed as Fundamental Rights under our Constitution are the dynamic and timeless rights of liberty and ;equalityand changing times illustrate and illuminate the meaning of the expressions used in the Constitution as it is a living and dynamic document which cannot be framed in time . Constitution fosters and strengthens the spirit of equality and envisions a society where every
person enjoys equal rights including LGBTIQ community which enable them to grow and realize their potential as an individual.
Constitutional Morality vs Social Morality
The concept of constitutional morality must be in consonance with the constitutional rights of the
citizens, howsoever small that fragment of the populace may be. In situations of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society they may be, then with the aid of judicial engagement and creativity constitutional courts have ensured that constitutional morality prevails over social morality. In the garb of social morality, the members of the LGBT community must not be outlawed or given
a step-motherly treatment by the society. Constitution of India allows state to take affirmative action to eradicate the systematic
discrimination against the backward sections of the society and the expulsion and censure of the
vulnerable communities including the LGBT. A country or a society which embraces constitutional morality has at its core the well-founded idea of inclusiveness.
The fundamental idea of dignity is regarded as an inseparable facet of human personality. Dignity has been duly recognized as an important aspect of the right to life under Article 21 of the Constitution. In the international sphere, the right to live with dignity had been identified as a human right way back in 1948 with the introduction of the Universal Declaration of Human Rights. The Universal Declaration of Human Rights, 1948 became the Magna Carta of people all over the world. The first Article of the UDHR was uncompromising in its generality of application: All human beings are born free and equal in dignity and rights. Thus, to understand a person‘s dignity, one has to appreciate how the dignity of another is to be perceived. Dignity and liberty as a twin concept in a society that cares for both, smoothens the atmosphere by promoting peaceful co-existence and thereby makes the administration of justice easy. Dignity is that component of one‘s being without which sustenance of his/her being to the is inconceivable. Dignity of all is a sacrosanct human right and sans dignity, human life loses its substantial meaning.
Section 377 of IPC ; Privacy
The Supreme Court observed that while testing the constitutional validity of section 377 of IPC, the idea of privacy as part of fundamental rights of life and personal liberty must be understood. The Court observed that autonomy i is individualistic and it is expressive of self-determination and such self-determination includes sexual orientation and declaration of sexual identity. Such an orientation or choice that reflects an individual‘s autonomy is innate to him/her. The Nine Judge Bench in privacy case has held that sexual orientation is also a facet of a person & privacy and that the right to privacy is a fundamental right under the Constitution of India. Article 12 of the Universal Declaration of Human Rights, (1948) makes a reference to privacy by stating: ;No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law
against such interference or attacks . Article 17 of the International Covenant of Civil and Political Rights, to which India is a party,
talks about privacy – "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home and correspondence, nor to unlawful attacks on his honour and reputation. Right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21 and it is a "right to be let alone for a citizen has a right to safeguard the privacy of
his/her own, his/her family, marriage, procreation, motherhood, child-bearing and education, among other matters. It is in this aspect that LGBT community has a right to realisation of its basic right to companionship, so long as such a companionship is consensual, free from the vice of deceit, force, coercion and does not result in violation of the fundamental rights of others.