Decriminalisation of Homosexuality

The Supreme Court in the landmark decision of Navtej Singh Johar versus The Union of India  decriminalised Section 377 of the Indian Penal Code in Navtej Singh Johar and Ors. vs. Union of India (UOI) and Ors. (06.09.2018 – SC) : MANU/SC/0947/2018 and issued the following additional directions:-

“500. Sexual orientation is integral to the identity of the members of the LGBT communities. It is intrinsic to their dignity, inseparable from their autonomy and at the heart of their privacy. Section 377 is founded on moral notions which are an anathema to a constitutional order in which liberty must trump over stereotypes and prevail over the mainstreaming of culture. Our Constitution, above all, is an essay in the acceptance of diversity. It is founded on a vision of an inclusive society which accommodates plural ways of life.

501. The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the state to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain.

502. Sexual and gender based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In de-criminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.

503. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the state has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.

504. This reference to the Constitution Bench is about the validity of Section 377 in its application to consensual sexual conduct between adults of the same sex. The constitutional principles which we have invoked to determine the outcome address the origins of the rights claimed and the source of their protection. In their range and content, those principles address issues broader than the acts which the statute penalises. Resilient and universal as they are, these constitutional values must enure with a mark of permanence.

505. Above all, this case has had great deal to say on the dialogue about the transformative power of the Constitution. In addressing LGBT rights, the Constitution speaks-as well-to the rest of society. In recognising the rights of the LGBT community, the Constitution asserts itself as a text for governance which promotes true equality. It does so by questioning prevailing notions about the dominance of sexes and genders. In its transformational role, the Constitution directs our attention to resolving the polarities of sex and binarities of gender. In dealing with these issues we confront much that polarises our society. Our ability to survive as a free society will depend upon whether constitutional values can prevail over the impulses of the time.

506. A hundred and fifty eight years is too long a period for the LGBT community to suffer the indignities of denial. That it has taken sixty eight years even after the advent of the Constitution is a sobering reminder of the unfinished task which lies ahead. It is also a time to invoke the transformative power of the Constitution.

507. The ability of a society to acknowledge the injustices which it has perpetuated is a mark of its evolution. In the process of remedying wrongs under a regime of constitutional remedies, recrimination gives way to restitution, diatribes pave the way for dialogue and healing replaces the hate of a community. For those who have been oppressed, justice under a regime committed to human freedom, has the power to transform lives. In addressing the causes of oppression and injustice, society transforms itself. The Constitution has within it the ability to produce a social catharsis. The importance of this case lies in telling us that reverberations of how we address social conflict in our times will travel far beyond the narrow alleys in which they are explored.

508. We hold and declare that:

(i) Section 377 of the Penal Code, in so far as it criminalises consensual sexual conduct between adults of the same sex, is unconstitutional;

(ii) Members of the LGBT community are entitled, as all other citizens, to the full range of constitutional rights including the liberties protected by the Constitution;

(iii) The choice of whom to partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behaviour are intrinsic to the constitutional protection of sexual orientation;

(iv) Members of the LGBT community are entitled to the benefit of an equal citizenship, without discrimination, and to the equal protection of law; and

(v) The decision in Koushal stands overruled.”

Access to basic amenities in Courts

While adjudicating upon the need for the basic infrastructure and facilities in the subordinate courts across the Country the following directions were issued by the Hon’ble Supreme Court in the matter of All India Judges Association and Ors. vs. Union of India (UOI) and Ors. (02.08.2018 – SC) : MANU/SC/0827/2018

“(i) Basic amenities such as adequate seating space for litigant public as well as lawyers, sufficient waiting area with seating arrangements, proper lighting and electricity, functional air-conditioning/air-cooling/heating, accessible clean drinking water with Reverse Osmosis (RO) facility, clean and hygienic washrooms separate for men, women, transgenders and physically handicapped persons, kiosk and functional canteens selling beverages and eatables at nominal rates, preferably managed by court staff are some amenities and facilities which ought to be ensured at court complexes throughout the country. If these are missing in our court complexes, it would be an appalling situation which requires immediate rectification.

(ii) We must further ensure that all our court complexes are conducive and friendly for the differently-abled and towards this end, the Court complexes must have certain features for the benefit of the vulnerable persons such as persons with disability or visually impaired persons. We have to move from disabled friendly buildings to workable and implementable differently-abled friendly court infrastructure. Ramps for such categories of persons must be operable, feasible, tried and tested. Such ramps should definitely have steel railings and handles. The court infrastructure must also keep in view the accessibility for visually impaired persons and, therefore, court complexes must have tactile pavements and signage in braille for the benefit of visually impaired citizens. That apart, for ensuring easy movement of common citizens in the court complexes, there must be maps and floor plans of the entire court complex at entry and exit points and visible signage and directional arrows with colour coding throughout the court premises.

(iii) For saving the litigant public and other citizens from running one end to the other without any guidance in the Court complexes and for assisting them to reach their desired place, it is necessary that all court premises must establish a working and fully operational help desk at major alighting points with trained court staff to brief and guide the citizens about the layout of the court premises.

(iv) Court premises must also have sufficient number of functional electronic case display systems for litigants and lawyers with the feature of automatic update in every ten seconds.

(v) With the increase in motor vehicles, including cars and two-wheelers, it is imperative that court premises have sufficient and proper parking space to ease vehicular traffic and avoid crowding. All upcoming court complexes must have provision for both sufficient underground and surface parking facilities segregated into four broad categories-for judges, court staff, lawyers and litigants. As far as the existing court complexes are concerned, the possibility and feasibility of constructing underground or multi level parking facilities must be explored.

(vi) The court premises must have easy access at both entry and exit points. End to end connectivity of public transport systems must be ensured for court premises by starting feeder bus service and other dedicated transport services between major public transport points and court complexes. Access to justice will forever remain an illusory notion if access to courts is not ensured.

(vii) Court premises must be armed with better crowd management arrangements along with adequate security measures. It has been seen, time and again, that at the time of court proceedings of cases which are well covered by the media, the crowd management in court premises runs into utter chaos. Measures must be taken to ensure that whenever court premises are thronged with heightened crowds, there is smooth ingress and egress of both vehicular traffic as well as citizens in the court premises.

(viii) Creche facility at nominal rates for toddlers, falling within the age group of 6 months to 6 years, of lawyers, clerks of lawyers, bar association staff and officers and employees of court registry must also be constructed. The said creche facility must not be just for the namesake, it has to be both functional as well as effective with proper space and equipment such as baby proofing and other toddler-friendly provisions. That apart, the courts should have a proper atmosphere for children and vulnerable witnesses.

(ix) Professionally qualified court managers, preferably with an MBA degree, must also be appointed to render assistance in performing the court administration. The said post of Court managers must be created in each judicial district for assisting Principal District and Sessions Judges. Such Court Managers would enable the District Judges to devote more time to their core work, that is, judicial functions. This, in turn, would enhance the efficiency of the District Judicial System. These court managers would also help in identifying the weaknesses in the court management systems and recommending workable steps under the supervision of their respective judges for rectifying the same. The services of any person already working as a Court Manager in any district should be regularised by the State Government as we are of the considered view that their assistance is needed for a proper administrative set up in a Court.

(x) Adequate residential accommodation for judicial officers and court staff is another infrastructural aspect which requires immediate attention. The productivity of judicial officers and court staff who are not provided with residential quarters in and/or around the court premises gets negatively hampered. Thus, residential accommodation in proximity of court complexes for judicial officers and court staff must also be provided.

(xi) There shall be solar power installation in each of the district court premises initially and thereafter, the same should spread to all other courts.

(xii) Keeping in view the obtaining scenario, CCTV cameras should be placed at proper locations within the court complex.

(xiii) To enhance the quality of speedy justice, video conferencing equipments and connectivity to jails shall be provided at the earliest.

(xiv) The district court complex should have a dispensary with adequate medical staff and equipments.”

Legal Recognition of Transgender as the Third Gender

Legal recognition is the first step towards equality and access to legal remedies. In the landmark judgment  in the matter of National Legal Services Authority vs. Union of India (UOI) and Ors. (15.04.2014 – SC) : MANU/SC/0309/2014, transgenders were recognised as the third genders and the following declaration by the Apex Court was the first step for the community

“We, therefore, declare:

(1) Hijras, Eunuchs, apart from binary gender, be treated as “third gender” for the purpose of safeguarding their rights under Part III of our Constitution and the laws made by the Parliament and the State Legislature.

(2) Transgender persons’ right to decide their self-identified gender is also upheld and the Centre and State Governments are directed to grant legal recognition of their gender identity such as male, female or as third gender.

(3) We direct the Centre and the State Governments to take steps to treat them as socially and educationally backward classes of citizens and extend all kinds of reservation in cases of admission in educational institutions and for public appointments.

(4) Centre and State Governments are directed to operate separate HIV Sero-surveillance Centres since Hijras/Transgenders face several sexual health issues.

(5) Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for SRS for declaring one’s gender is immoral and illegal.

(6) Centre and State Governments should take proper measures to provide medical care to TGs in the hospitals and also provide them separate public toilets and other facilities.

 

(7) Centre and State Governments should also take steps for framing various social welfare schemes for their betterment.

(8) Centre and State Governments should take steps to create public awareness so that TGs will feel that they are also part and parcel of the social life and be not treated as untouchables.

(9) Centre and the State Governments should also take measures to regain their respect and place in the society which once they enjoyed in our cultural and social life.”

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