On the margins with full equality still out of reach (GS-2, Governance, The Hindu)

On the margins with full equality still out of reach (GS-2, Governance, The Hindu)

Context:- This year Google Doodle in the month of zone celebrated about Dr. Frank Kameny (1925-2011) who was an American astronomer, veteran, and gay rights activist. He had ‘successfully challenged the American Psychiatric Association’s classification of homosexuality as a mental disorder’. The queer community is still a stigmatized and invisible minority in India though Indian constitution provides Right to equality.

Issue of 377:-

  • This was a colonial legacy. Which said that “whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished”.
  • This section was challenged on the particularity of article 14,19 and 21 of indian constitution.

Problems faced by LGBT Community:-

  • Physical and emotional abuses against lesbian, gay, bisexual and transgender people including arbitrary arrests, violence, bullying in schools, denial of access to health and harassment at work.  
  • A high level of depression is amongst members of the LGBT community 
  • Failures because of societal rules and discriminations in a normal life.  
  • Financial security is denied to these people 
  • Constant police harassment of the gay community.  
  • Doctors need to say that homosexuality is not a disease.  
  • Government should do capacity building of doctors to understand health issues specific to the homosexual community, it needs to be part of the educational curriculum.

What are the court judgments regarding IPC 377?

Naz Foundation vs. Govt. of NCT of Delhi (2009):-

  • Delhi High Court struck off in its famous judgement on section 377. Court specifically legalising consensual homosexual activities between adults.

Suresh Kumar Koushal Case (2013):-

  • SC completely overturned the previous judgment by Delhi High Court (2009) that decriminalized homosexual acts and criminalized homosexuality once again.
  • In 150 years less than 200 persons had been prosecuted under Section 377.
  • SC argued that, “plight of sexual minorities” could not be used as an argument for deciding the constitutionality of law.
  • Further, SC said that it was for the legislature to look into the desirability of deleting section 377 of IPC.

Justice K.S. Puttaswamy vs. Union of India (2017)

  • Right to Privacy is intrinsic to life and liberty and must be included in Fundamental right under Article 21 of the Indian constitution.
  • Bodily autonomy was an integral part of the right to privacy said by Supreme court
  • Sexual orientation of an individual is one’s choice.

Navtej Singh Johar vs. Union Of India (2018)

  • This judgement decriminalised homosexuality.

Why decriminalization of 377 is a milestone:-

  • It recognizes the rights of most discriminated persons.
  • It shows the upholding of fundamental rights to all.
  • It is progressive judgment which will further gives consolidation to same sex marriage’s rights.
  • Protection of Human rights under United nation human declaration for which India is party.

Indian perspective on same sex marriage:-

  • In india general marriage are governed under Hindu Marriage Act, 1955, Indian Christian Marriage Act, 1872, Muslim Personal Law (Shariat) Application Act, 1937.
  • same-sex and queer marriages are not clearly recognised in India and neither by society.
  • Arun kumar and Sreeja vs The Inspector General of Registration and Ors:- Madurai Bench of the High Court of Madras employed a progressive  interpretation holding that the term ‘bride’ under the Hindu Marriage Act, 1955 includes transwomen and intersex persons identifying as women. 

International views on the issue of same sex marriage and LGBTQIA+ rights:-

Constitutional Court of South Africa In 2005 :- 

  • Minister of Home Affairs and Another vs Fourie case:– where court said that the common law definition of marriage i.e. “a union of one man with one woman” was inconsistent with the Constitution of the Republic of South Africa
  • So the words “or spouse” was included in place of “husband”. 
  • The South african government enacted  the Civil Union Act, 2006 which said marriage is voluntary union of two persons above 18 years of age.

In Australia:-

  • The Same-Sex Relationships (Equal Treatment in Commonwealth Laws – General Law Reform) Act 2008 was enacted which provide provide equal entitlements for same-sex couples in matters of, inter alia, social security, employment and taxation.

England and Wales:-

  • the Marriage (Same Sex Couples) Act 2013 enabled same-sex couples to marry in civil ceremonies or with religious rites.

United States of America:- 

  • Supreme Court of the United States decided that the fundamental right to marry is guaranteed to same-sex couples.
  • Obergefell vs Hodges ushered in a landmark shift in the American position and allowing same-sex marriages

There is a recognition that the unequal laws discriminating against the LGBTQIA+ community have acted and are acting as a trigger to reform and modernise the legal system which in actual sense provides equality.

A case of Ireland:-

  • Ireland is 1st country which regonises and legalises the same sex marriages.

The Transgender Persons (Protection of Rights) Act, 2019:-

Facts About Transgender Person:-

  • Transgender’ is an umbrella term that includes persons whose sense of gender does not match with the gender assigned to them at birth as according to the WHO.
  • According to the 2011 Census about 0.04% of the total population is transgender. 
  • An Expert Committee, examined the issues related to transgender persons, was setup in 2013.
    • The Committee after examining the set of issues reported that
      • These transgender persons faced issues of social stigma and discrimination which affected their access to education, healthcare, employment and government documents. 
      • Our Supreme Court has also recognised a transgender person’s right to self-identification as male, female or the third gender in a case.

Key Features of the Act:-

  • The act provides a holistic definition of a transgender person:-

      • Transgender person includes trans-men and trans-women, persons with intersex variations, gender-queers, and persons with socio-cultural identities, such as kinnar and hijra.  
      • Intersex variations are also defined.
  • Certificate of identity for a transgender person:-

    • A transgender person (T.P.) has right to self-perceived gender identity.
    • A T.P. has to obtain a Certificate of Identity issued by the District Magistrate (DM). 
    • A revised certificate may be obtained by the same person in case of a bodily change.
  • Prohibition of Discriminations:-

    • The Act prohibits discrimination against a transgender person, which also includes unfair treatment or denial of service in relation to:
      • Education
      • Employment 
      • Healthcare
      • Access to public goods and facilities
      • Right to movement
      • Right to rent or own property
      • Opportunity to hold public or private office
    • Access to a government or private establishment which has custody of a transgender person.
  • All public and private establishments are prohibited from discriminating against a transgender person in terms of employment matters.
  • Benefits related to employment, health and education:-
    • Welfare schemes and programmes to facilitate and support livelihood for transgender persons will be provided by the State and Central government.
    • Healthcare facilities to transgender persons should be provided by the central and state government.
  • A National Council for Transgender (NCT) persons will be set up to advise the central government on policies. 
  • These offences will attract imprisonment between six months and two years, and a fine or both accordingly decided by the court.

What are the Issues in the Act:-

  • Self-determination of identity vs. verification of eligibility for entitlements:- The identity of the transgender person will depend on the will of executive i.e. D.M. to provide a certificate of identification.
  • Supreme Court already upheld the right of transgender persons to determine their self-identified gender as a man, woman or as third gender.  
  • The Act creates provisions to protect transgender persons from discrimination, and provide welfare schemes in relation to health, education and employment.  
  • The meaning and implication of the term ‘self-perceived gender identity’ is unclear.
  • The Bill does not follow the Standing Committee’s recommendation on a Screening Committee which instead of D.M recommended a District Screening Committee based on a number of people.

Gender specific laws and procedures in India Legislation

Indian Penal Code,1860:-

  • Punishment for assault on a woman with intent to outrage her modesty.
  • Punishment for selling female minors for purposes of prostitution
  • Rape committed by a man on a woman
  • Insulting the modesty of a woman by Word, gesture or act.
  • Woman subjecting her to cruelty BY husband or relative of husband.
  • Dowry death

Code of Criminal Procedure,1973:-

  • A female under arrest can be searched only by another female cop with strict regard to decency.
  • Restoration of the liberty of unlawfully detained females
  • Requires the medical examination of a victim of rape
  • Indecent Representation of Women (Prohibition) Act, 1986
  • Prohibits the indecent representation of women in various forms of publications.

Protection of Women from Domestic Violence Act, 2005:-

  • This act grants protection to a woman in a domestic relationship and who alleges domestic violence.

Civil laws

  • The Sexual Harassment of Women At Workplace (Prevention, Prohibition, Redressal) Act, 2013

      • This act provides protection against the sexual harassment of women at the workplace.
  • Hindu Marriage Act, 1955:-

      • This act recognises marriage between a man and a woman.’
  • The Special Marriage Act, 1954:-

  • Recognizes marriage between a man and a woman.

Other laws:-

  • The Mines Act, 1952:-

    • This act prohibits the employment of a woman in areas of a mine below ground level
    • This act permits the employment of a woman in a mine above ground level between the hours of 6 am and 7 pm.
  • Factories Act, 1948:-

      • This act permits a woman from working in any factory only between the hours of 6 am and 7 pm.
  • National Food Security Act, 2013

    • This act provides eldest woman in every eligible household will be head of the household for the purpose of issue of ration cards.
  • National Rural Employment Guarantee Act, 2005

    • This act makes priority will be given to women workers (at least one-third of the beneficiaries are to be women) if they have registered and requested for work under this Act.
  • The Companies Act, 2013

    • This act provides the Board of Directors of every company to have at least one woman director.

Way forward:-

  • Where ever there is any legal or statutory bar to same­sex and queer marriages must necessarily be held to be unconstitutional and specifically on the violation of article 14,19 and 21.
  • Self Respect marriages were legalized in Tamil Nadu through amendments to the Hindu Marriage Act, 1955.
  •  A community evolved mechanism which ensure the rights of all people especially LGBTQIA+ should be protected.
  • Government must amend the laws and put a progressive definition of marriage.
  • Court must also pronounced a progressive and more sensitive approach towards the deprived people of same sex marriage.
  • 172nd Law Commission Report recommended deletion of Section 377. 
  • In 2016, a UN report had urged to decriminalize consensual homosexual relations.
  • Government bodies need to be sensitized and made aware about the changed position of law to ensure that the LGBTQ community is not denied public services or harassed for their sexual orientation.

Download Plutus IAS Daily Current Affairs of 28th June 2021

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