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Social Equality and LGBT Rights': Submitted by
Social Equality and LGBT Rights': Submitted by
Social Equality and LGBT Rights': Submitted by
Submitted by
ANKIT CHOUBEY
Division- D. PRN-17010223069 Batch-2017-2022
OF
Symbiosis Law School, NOIDA
(Symbiosis International University, PUNE)
In
August,2017
(ASSISTANT PROFESSOR)
CERTIFICATE
The project entitled ‘Social equality and LGBT rights’ submitted to the Symbiosis
Law School, NOIDA for Law of Torts, MV Accident and Consumer Protection Laws
I as part of Internal assessment is based on my original work carried out under the
guidance of Miss Meera mathew from July to September. The research work has not
been submitted elsewhere for award of any degree. The material borrowed from other
sources and incorporated in the thesis has been duly acknowledged. I understand that I
myself could be held responsible and accountable for plagiarism, if any, detected later
on.
Date: 29/08/2017
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‘Social Equality and LGBT Rights’
ACKNOWLEDGEMENT
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‘Social Equality and LGBT Rights’
INDEX
Introduction 5
Objective 6
Research questions 6
Conclusion 10
Bibliography 11
INTRODUCTION
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‘Social Equality and LGBT Rights’
LGBT is the most commonly used acronym for the lesbian, gay, bisexual and
transgender community. It is also used as an umbrella term for heterosexual and a
wide variety of other acronyms like “I” is added to include intersex i.e. people with
characteristics of both genders, and a “Q” for people who identify simply as queer i.e.
the ones who are not sure about their sexual orientation and gender identity. There are
other communities also like asexual (people who are not attracted to anyone in a
sexual manner), pansexual (people who are attracted all or wide variety of genders)
and non-binary (people whose gender identity is not exclusively masculine or
feminine). 1
As the law has evolved through the various stages, the rights of the LGBT community
are still at stake. The struggle from natural law which was based on customs and
tradition, termed acts of the community as ‘immoral’ to the 20th century England
which started to recognize rights of the community. Religion that forms the base of
the society also played a crucial as it inspired to term the acts of the community as
‘unnatural offences’.
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‘Social Equality and LGBT Rights’
OBJECTIVE
Throughout the history, the homosexual or LGBT community has been deprived of
their basic right. This research work will focus on the right of LGBT from a
jurisprudential angle with Hart and Fuller debate. In order to examine the loopholes,
the analysis would be on assessing the term ‘LGBT’ and their rights as citizens under
the Constitution. Further, this research work unfolds the case laws on Homosexuality
in India and designs to bring forth with the certain suggestion that could be taken for
the betterment of the community.
RESEARCH QUESTIONS
Hart warned against the dangers of “populism” and was against the view of
imposing majoritarian perception of morality over the remaining members of the
society. He questioned why should the conventional morality of a few members
5
Stonewall riots, also called Stonewall uprising, series of violent confrontations that began in the
early hours of June 28, 1969, between police and gay rights activists outside the Stonewall Inn, a gay
bar in the Greenwich Village section of New York City. As the riots progressed, an international gay
rights movement was born.
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‘Social Equality and LGBT Rights’
of the population be justification for preventing people doing what they want?
Hart followed Mill's "harm principle” which stated “No act should be interfered
with it unless it affects the rights of another person” This is based on the theory
that most people's views are coloured by superstition and prejudice. Hart also
pointed out that disintegration of the society is not a result of mere changes in
moral view.
Section 377 of IPC broadly covers Crimes sodomy, incest and homosexuality.
The offence of sodomy was introduced in India on 25/7/1828 through the act for
improving the administration for Criminal Justice in the East Indies. “Sodomy”
–“And it be enacted, that every person convicted of the abominable crime of buggery
committed with either any animal, shall suffer as a felon”.6
The I.P.C along with Section 377 as it exists today was passed by the Legislative
council and the Governor General assented to it on 6/10/1860. The understanding of
acts which fall within the ambit of section 377 has changed from non-procreative to
6
Suresh kumar Kaushal v. NAZ Foundation, (2014) 1 SCC 1
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‘Social Equality and LGBT Rights’
Right to live with dignity has been recognized as a part of Article 21 and the matter
has been dealt with in Francis Coralie v. Administrater, union territory of Delhi and
Ors9.There have been arguments in court throughout the 19th century and early 20th
century on the ground that section 377 has been used to penetrate harassment,
blackmail and torture on certain persons, especially belonging to LGBT community.
This treatment neither mandated by the section nor nor condomed by itand the mere
fact that the section is being misused by the police authorities and others is not a vires
of the section. The law in this regard is discussed and clarified succinctly in Sushil
kumar sharma v. Union of India and ors. 10With refrence to Mafatlal industries LTD
and ors v. union of India11 and State of Rajesthan v. Union of India 12 judiciary in its
anxiety to protect the so-called rights of LGBT persons to declare that section 377,
I.P.C violates the right to privacy, autonomy and dignity. The constitutional validity
of section 377 was challenged in the Delhi High Court in the case of Naz Foundation
v Government of Delhi & Ors.13 In this case it was argued that Section 377 on account
of covering consensual sexual intercourse between two adults in private, is violative
of the fundamental rights guaranteed in Articles 14, 15, 19 and 21 of the Constitution.
It was also contended that Article 21 can be curtailed only in case of compelling state
interest which is missing in this case. 14 This order of the Delhi High Court was
challenged before the Supreme Court in the case of Suresh Kumar koushal and
another v Naz Foundation & others15, Supreme Court ruled out the previous
judgment. But in the recent judgment of JUSTICE K S PUTTASWAMY (RETD.),
AND ANR. V. Union of India16 In paras 123, 124 and 128 of the judgement the judges
show their disagreement with the judgement delivered by the 2-judge bench in 2013.
7
AIR 1968 GUJ 352
8
1991 CrLJ 488
9
(1981) 1 SCC 608.
10
[1956] 29 ITR 349 (SC)
11
1997 (89) ELT 247 (SC)
12
[1978] 1SCR 1
13
(2010) Cri LJ 94 (Delhi).
14
ibid
15
AIR 2014 SC 563.
16
Supra note 3
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‘Social Equality and LGBT Rights’
For avoiding the ambiguity in the matter cases will be filed and judiciary will clarify
the judgement in relation to rights of homosexuals.
What are the rights awarded to LGBT community in India and other
countries?
Laws affecting lesbian, gay, bisexual, and transgender (LGBT) people vary greatly by
country or territory—everything from legal recognition of same-sex marriage or other
types of partnerships, to the death penalty as punishment for same-sex
romantic/sexual activity or identity. LGBT rights are considered human rights by
Amnesty International and civil rights by some. Countries like Canada, USA, Maxico,
South Africa, Argentina, Netherland, U.K., and Spain have passed legislation in
concerned to the following giving those basic rights of humanity.
LGB
Anti-
Adoptio allowed
Same- discriminatio
Recognitio Same- n by to serve Laws concerning
sex n laws
n of same- sex same- openly gender
sexual concerning
sex unions marriage sex in identity/expression
activity sexual
couples military
orientation
?
The following tells about which countries are most safe and legally healthy for LGBT
community
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‘Social Equality and LGBT Rights’
In our country only transgender community has been recognized by the law. In
transgender individuals cannot adopt and laws on same sex is an issue since Indian
Penal Code, 1860.
Conclusion
Equality is universal, fundamental in its very core; social equality due to delusional
perception of the people results chaos. It is the belief of the people that deprives
others from their rights, it is the perception of the society which makes suffer
particular section, deprive them from social conduct, and treat as outcast. LGBT
community has suffered through every phase of legal system. They have been
deprived of their fundamental rights and social status. Our country have not
recognized rights for homosexuality and many rights of transgender but the battle is
still being fought. The recent judgement of JUSTICE K S PUTTASWAMY (RETD.),
AND ANR. V. Union of India17 has broadened the scope of the homosexual issue. As
rightly argued by Hart against imposing the popular will on the individual , the state is
framing laws for every individual of each section of the society. Though there are
advocacies for LGBT community on international level like (DADT) Don’t Ask
Don’t Speak that will eventually make society realize that LGBT community is also
the part of the society and should not be treated like outcasts.
17
Supra note 3
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‘Social Equality and LGBT Rights’
Bibliography
1. Hart, H. L. (2007). The Concept of law. Oxford University Press.
2. Jethmalani, R., & Chopra, D. S. (2014). The Indian Penal Code. Thomso Reuters legal.
4. Singvi, D. M., & Swarup , J. (2013). Jagadish Swarup Constituion of India. Thomson
Reuters.
5. Thomas, J. T., & Alam, J. (2016). R A NELSON'S INDIAN PENAL CODE. LexisNexis.
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‘Social Equality and LGBT Rights’
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