How Can They Fight

With Empty Hands:

Need For Rights
Mohd. Arif Sayyed Moin
iousbose1996@gmail.com

MD-520, Hall of Residence 2, Alliance University, Chikkahagade Cross,

Chandapura-Anekal Main Road, Anekal-562106 (Dist. Bangalore)

Abstract
Sexuality is a backdoor concept in India and seldom spoken about openly in the
public domain. The purpose of this research is to examine if the non-recognition of
the LGBT rights is legally justifiable. In the first part, we discuss how sexual
minorities is often marginalised in India which leads to their social exclusion.
Absence of rights for the LGBT community leads to violence and discrimination
against them by the state instrumentalities under the purview of section 377. The
struggle of the community to have liberty and equality with respect to the rest of the
society as human beings and thereby incriminates their exclusion. In the second part,
the paper examines the draconian laws punishing one for ones sexuality and private
consensual relationships. It also establishes the unconstitutionality of such archaic
laws in modern India. The denial of their deserved sexual identity and basic human
rights by the Indian courts and Parliament is nothing but denial of Moral full
Citizenship.

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Introduction
Society is a concoction of people of different cultures, beliefs, traditions, religion etc.
The existence of various groups in harmony to each other is the societal fabric of the
Indian civilization. India is a land of diversity. The Hijras have been a part of the
Indian culture since time immemorial. The concept of Tritiyaprakiti or
Napumsaka have been integral part of the Hindu mythology. The largest religion of
India i.e. Hinduism has a neutral or antagonistic position about the status of such
groups. The Rig Veda, one of the four sacred canonical texts of Hinduism reads as
,1

Meaning what seems unnatural is also natural which some scholars believe recognises
the LGBT dimension of human life, like all the diversities of the universe. In the
Moghul era, Hijras enjoyed eminent position such as political advisors,
administrators, general as well as guardians of harems. The advent of the British and
the application of Biblical laws have led to ostracize the community. The British
passed the Criminal Tribes Act, 1871 to isolate and criminalize them. The isolation
coupled with discrimination has increased the inequalities among the mainstream
society and the Hijras. The socio-economic, political, and cultural diversity,
prevailing across the country has led to the deprivation of the exercise of human rights
to them. They are side-lined and treated as untouchables, forgetting the fact that the
failure lies in the societys unwillingness to contain or embrace different gender
identities.
Human rights demand that welfare and well-being be extended to all people at all
times. The LGBT community have faced severe backlash in India for expressing their
sexuality and desires. The discussion of sex in any form is a taboo in India and a
backdoor talk. The police and the social stalwarts have unequivocally condemned
such practices on the ground of unnaturalness The Delhi unit of the Hindu
1 Homosexuality in India. ( 17th Feburary, 2016.) Retrieved from
https://en.wikipedia.org/wiki/Homosexuality_in_India#History
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fundamentalist Vishwa Hindu Parishad complained, It is against the culture and

family system in India. It will result in the spread of a number of diseases 2. The All
India Muslim Personal Board3 also backlashed the community in the same manner.
The criminalisation of homosexuality by law has meant that those practising it have to
be at the margin of the society and keep secrets from families and acquaintances.
Sudipta Das, a homosexual from Kolkata states that being a LGBT is having a life in
peril, always getting life threats of being burnt alive or killed in public. 4 Absence of
rights for the LGBT leads to violence against them by the state instrumentalities under
the garb of Section 377 of IPC.
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 be liable to fine. Explanation Penetration is
sufficient to constitute the carnal intercourse necessary to the offence described in
this section.
The criminal laws in India like other laws have their roots in the England. Lord
Macaulay, drafter of IPC imposed it on many colonies of which western democracies
have struck down laws such as Section 377. Even, in England the birthplace of section
377 homosexuality was struck down back in 1967. In the 1980s European Court of
Human Rights (ECHR) ruled that criminalising same sex sexual behaviour was
violation of protection of private rights 5. A number of incidents have highlighted
victimization of the LGBT as a result of Section 377. Homosexual men who meets in
parks and other public places are often entrapped and blackmailed by the police under
2 Religious leaders oppose repeal of Section 377. Indian Express. 28 June 2009
3 C News. Gay sex decriminalised in India. 2 July 2009. At: . Accessed 2 July 2009.
4 Shaminder Dulai ( 2014, December) Back in the Shadows: The peril of being a LGBT in
India. Retreived from http://www.newsweek.com/india-gay-lgbt-modi-transgender-uskolkata-civil-rights-coming-out-295483
5 Miller A. Sexuality and human rights: discussion paper. Geneva: International Council on
Human Rights Policy; 2009.
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the penalty of section 377. It was in response to the arrest of four men outside
Connaught place Park, New Delhi, the non-governmental organization AIDS
Bhedbhave Virodhi Andolan (ABVA) organized the first protest and demanded gay
rights outside Delhi Police headquarters6. Further abuse of section 377 resulted in
arrest of the Naz Foundation and Bharosa Trust workers in Lucknow in 2001 by the
police on the accusation of running a gay sex club 7. As Gupta points out that, the
mere existence of section 377 even if it cannot and is not being enforced in
prosecuting sexual acts in private, adds a certain criminality to the daily lives of
homosexual men and puts them under the gaze of the law and a constant threat of
moral terrorism.8 In 2002 in Bangalore, Sangama, a NGO working with sexual
minorities was the not allowed to hold discussion as the police barred the visitors
from seeking their service and ordered to hold them outside the city9. These are some
instances of the abuse of section 377 by the state instrumentalities under the guise of
maintain law and public order.
The struggle of the LGBT rights started back in the 1990s but it got impetus in 2002
when the Naz foundation filed the petition in the Delhi High Court 10. The Delhi High
court adjudged the matter by observing that, Section 377 is violative of Article 21, 14,
and 15 of the constitution insofar as it criminalises consensual sexual acts of adults
done in private. The Law commission of India in its 172nd report11 also demanded the
6 Rukmini Sen, Breaking Silence, Celebrating new spaces : Maping elite response to
inclusive development ( July, 2009) IJLT, Volume 6.
7 Gupta A. Section 377 and the dignity of Indian homosexuals. Economic and Political
Weekly. 18 Feb 2006
8 Supra 6.
9 Ramasubban R. Political intersections between HIV/ AIDS, sexuality and human rights: A
history of resistance to the anti-sodomy law in India. Global Public Health 2008;3(2): 2238.
10 Timeline of South Asian and diasporic LGBT history ( 14 Feb, 2016). Retrieved from
https://en.wikipedia.org/wiki/Timeline_of_South_Asian_and_diasporic_LGBT_history
11 Recommendations on amendments to the laws relating to rape and related provisions
( 2014.) Law commission of India. Retreivied from
http://ncw.nic.in/PDFFiles/Recommendations_on_amendments_to_the_laws_relating_to_rape
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repeal of section 377. However, the Supreme Court overturned the decision on
December 11, 2013 stating the parliament could only bring the sought after clarity in
the matter12. The Supreme Court was criticised by many national and international
organization for giving such a regressive ruling on a matter of international human
rights. The Supreme Court in February 2016 decided to refer the matter to a
Constitutional Bench to take a call on validity of section 37713.
Right of expressing ones sexuality and desires can be harmonious construed to be a
fundamental right under the Constitution of India. The triple reading of Article 14, 15
and 21 gives us the light required in the matter. The Honble court also defined the
term sex in Article 15 to include the third gender 14. The decision recognises the right
of a person to identify in the gender they relate to, that is male, female or third gender
irrespective of medical intervention. The Honble Court observed that under Article
21, the gender to which a person belongs is to be determined by the person
concerned while broadening the scope of the term sex as defined in Article 14, 15
and 16.
Article 6 of the Universal Declaration of Human Rights (UDHR 15) recognizes that
everyone has an inherent right to live and this right shall be protected by law and no
one shall be arbitrarily denied of this right. Everyone shall have a right to recognition
everywhere as a person before law. Article 17 of the ICCPR states that no one shall be
_and_related_%20provsions.pdf
12 Shyamanta Asokan ( 2013, December). India's Supreme Court turns the clock back with
gay sex ban. Retrieved from http://www.reuters.com/article/us-india-rights-gayidUSBRE9BA05620131211
13 KrishnaDas Rajgopal. (2016, Feburary) Five-judge Constitution Bench to take a call on
Section 377. Retrieved from http://www.thehindu.com/news/national/supreme-court-refersplea-against-section-377-to-5judge-bench/article8183860.ece?homepage=true
14Supreme Court recognises the right to determine and express ones gender; grants legal
status to third gender. ( 2015). Lawyers Collective . Retrieved from
http://www.lawyerscollective.org/updates/supreme-court-recognises-the-right-to-determineand-express-ones-gender-grants-legal-status-to-third-gender.html
15 Article 6, UDHR 1948, http://www.un.org/en/universal-declaration-human-rights/
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subjected to arbitrary or unlawful interference with his privacy, family, home or

correspondence, nor to unlawful attacks on his honour and reputation and that,
everyone has the right to protection of law against such interference or attacks 16.
Persons of diverse sexual orientation and gender identities shall enjoy legal capacity
in every aspect of life. Each persons self-defined sexual identity and gender
orientation is integral to their personality and is one of the most basic aspect of selfdetermination, dignity and freedom. No status such as marriage or parenthood may be
invoked as such to prevent the legal recognition of a persons gender identity.
Everyone has a right to life and personal liberty. No one shall be arbitrarily deprived
of life, including by reference to sexual orientation or identity. The Constitution
guarantees certain rights to all persons, while others are limited to citizens both of
which includes the LGBT. These right include the he right to life and personal liberty
(Article 21), the right to equality and equal protection of law (Article 14), right to
non-discrimination on prohibited grounds and equality of opportunity in public
employment (Articles 15 and 16), right to freedom of speech and expression (Article
19), amongst others. It is established that international laws can be used to expand the
protection guaranteed in Part III of the Constitution. India has ratified the UDHR and
International Covenants on Economic, Social and Cultural rights (ICESR) thus human
rights are enforceable in India. The right to dignity forms a constitutional culture,
which seeks to ensure full development and evolution of persons 17. The European
Court of Human Rights (ECHR) has recognized that gender lies at the heart of the
fundamental dignity in a series of cases18. Even, the courts in Nepal and South Africa
decriminalised laws such as section 37719. The framers of the Constitution, through

16 Article 17, ICCPR, https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume999-I-14668-English.pdf

17Francis Coralie Mullin v. Administrator, Union Territory of Delhi, (1981) 1 SCC 608 at
paras 7 and 8]
18 Van Kuck v. Germany Application No. 35968/97 decision of ECHR dated 12.09.2003
ECHR: Vol.: A-2: pp. 187-216], Christine Goodwin v. the United Kingdom (Application No.
28957/95) Date of Judgment- 11th July, 2002, ECHR: Vol: A-2: p. 173]
19 Sunil Babu Pant & Ors. v. Nepal Government (Writ Petition No. 917 of 2007).
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Article 14, 15 and 16 sought to prohibit discrimination based on sex thereby

recognizing that sex discrimination was a historical fact and needed to be addressed
Allowing laws such as section 377 not only violates the fundamental right of the
LGBT but also shows the incapacity of the state and the society as whole to be not
able to protect a vulnerable group. Non-recognition of their rights and freedom is in
simple terms is the denial of Full Moral Citizenship by the state. By striking down
section 377, this Court is not only upholding the rule of law but also advancing justice
to the class, so far deprived of their legitimate natural and constitutional rights. It is,
therefore, the only just solution which ensures justice not only justice not only to
LGBTs but also justice to the society as well.

References
1. http://www.reuters.com/article/us-india-rights-gayidUSBRE9BA05620131211
2. https://www.washingtonpost.com/politics/gay-marriage-and-other-majorrulings-at-the-supreme-court/2015/06/25/ef75a120-1b6d-11e5-bd7f4611a60dd8e5_story.html
3. http://law2.umkc.edu/faculty/projects/ftrials/conlaw/gayrights.htm
4. https://en.wikipedia.org/wiki/Naz_Foundation_(India)_Trust
5. http://www.thehindu.com/news/national/supreme-court-refers-plea-againstsection-377-to-5judge-bench/article8183860.ece?homepage=true
6. http://www.lawyerscollective.org/updates/supreme-court-recognises-the-rightto-determine-and-express-ones-gender-grants-legal-status-to-third-gender.html
7. http://supremecourtofindia.nic.in/outtoday/wc40012.pdf

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8. Geetanjali Misra, Decriminalsing Homosexuality in India ( 2009, November),

Reproductive Health Matters, Vol. 17. 2009.
9. Dipika Jain and Kimberly Rhoten, The Heteronormative State and the Right to
Health (2013), NUJS Law Review, Vol. 4.
10. Diana Boesch, Creating Dignity out of Despair: The Impact of 2009
decriminalisation of Homosexuality in Delhi. (2012) Independent Study
Project

(ISP)

Collection

Paper

1295.

http://digitalcollections.sit.edu/isp_collection/1295.
11. Agoramoorthy G, Hsu M. India's homosexual discrimination and health
consequences. Revista de Salude Publica 2007;41(4).
12. Khanna S. Gay rights. In: Humjinsi: A Resource Book on Lesbian, Gay and

Bisexual Rights in India. Fernandez B, editor. Mumbai: Indian Centre for

Human Rights and Law; 2002.

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