Discrimination Based On Sexual Orientation In The Light Of Article 15 And Supreme Court Judgement Of Navtej Singh Johar Case

ABSTRACT

“The world is full of magical things patiently waiting for our wits to grow sharper.”

  • Bertrand Russell

Evolution of human beings has taken over millions of years. LGBTQ Community may be one such evolution. LGBTQ Community is not a community which has arisen suddenly, but it can be said that the community has started to come up openly in the 21st Century. A country like India, which believes in rich cultural heritage, considers such community and its people as a taboo. Therefore, coming up openly in such a country has always been a challenge and that might be one of the major reasons why it took so much time to come up. Judiciary has therefore played a major role for such communities. Privacy, dignity, freedom and liberty are therefore a fundamental human right enshrined in the Constitution of India.

KEY WORDS

Sexual orientation, LGBTQ, gender identity, human resource, same sex partners

INTRODUCTION

Article 15 of the Constitution of India explicitly prohibits discrimination on the grounds of religion, race, caste, sex, place of birth or any of them. This right exists for “any citizen” who is discriminated on the basis of rights and security. Gender identity is an integral part of sexuality. Gender identity is closely related to the concept of gender role, which is external manifestation of a personality that reflects gender identity.

Sex, as in the case of Article 15, is not limited to the natural human traits of a person, but also includes “sexual identity and character”.

BIRD EYE VIEW ON SECTION 377 AND ARTICLE 15

Section 377 of the Indian Penal Code (IPC) is a law that criminalizes homosexuality. It states that Whoever voluntarily has carnal inter­course against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with impris­onment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

Article 15 states that no citizen can be discriminated on the basis of sexual orientation, religion, ethnicity, or birthplace.

In the case of Navtej Johar, the Supreme Court held that any discriminatory, whether direct or indirect, based on a particular understanding of the role of sex, constituted discrimination under Article 15. Therefore, Section 377 was treated as discriminatory under Article15.

The International Covenant on Civil and Political Rights (ICCPR)recognizes the inherent dignity of the individual and undertakes to promote conditions to allow for the enjoyment of civil and political rights.

India also signed ICCPR. ICCPR proposes the right to equality and strongly states that, ‘the law prohibits any discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth.

Article 15 (2) prohibits discrimination against a citizen when accessing public spaces and opportunities. Therefore, discrimination on the basis of sexual orientation is not permitted even in the horizontal exercise of a right enshrined in Article 15 of the constitution.

‘Discrimination on the basis of sexual orientation seriously undermines one’s dignity and self-esteem’ Therefore, we need to understand discrimination on the basis of sexual orientation in detail.

DISCRIMINATION BASED ON SEXUAL ORIENTATION

Discrimination on the basis of sexual orientation can be direct or indirect. It can also take the form of harassment or bullying. It would also be discriminatory for an employer to take action against employees of the opposite sex because of their sexual orientation.

In 2009, section 377 Indian Penal Code (IPC) was scraped by the Delhi High Court, but the decision was overruled by the Supreme Court, which ruled that it was the job of Parliament, not the judiciary, to change the law.

The Supreme Court of India has issued a landmark judgement in the case of Navtej Singh Johar vs Union of India recognizing the right of LGBT people in the country to express their sexuality without discrimination. The case is explained in detail below.

LANDMARK CASE – NAVJTEJ SINGH JOHAR VS UNION OF INDIA 6th SEPTEMBER, 2018

Supreme court decriminalised a part of Section 377 of the Indian Penal Code, of 1860 which prosecuted secretly consensual sexual acts between adults of the same sex. This Supreme Court decision in a way has restored the dignity and rights of the LGBTQI + community. But the ruling only referred to the section established by the Penal Code on how to distinguish between sexual acts between homosexuals. Marriages, adoptions, sequences and other areas of private life of the LGBTQI + community are uncertain at this time.

Besides, another topic of concern is the workplace. Holding consensual acts of same-sex relationships or any other unnatural act between legal and non-criminal consent of adults is not the end goal.

The Supreme Court in the above-mentioned case gave a ruling that guarantees sexual freedom forms part of a comprehensive case that examines that privacy was a fundamental right of the 1.3 billion people living in India. In this case, A panel of nine judges ruled that they should be considered part of the right to health and freedom enshrined in the country’s constitution.

Sexual orientation is a part of privacy. The right to privacy is a guaranteed right for all citizens under Article 21 and that is why section 377 opposes this right. Privacy, dignity, freedom and liberty are therefore a fundamental right cannot be violated.

ARE THE WORKPLACES IN INDIA LGBTQI + FRIENDLY?

Creating an environment where LGBTQI + treated with dignity respect should be a priority for organizations. This requires the use of policies that tolerate harassment, discrimination, and exploitation against the LGBTQI + community. It seems that after discussing the issue, companies should include information about sex in their policies and manuals. The reality is still very far from the dream anyway.

Most companies are not LGBTQI + friendly and for this reason, employees of this community usually do not openly acknowledge their identities. To address this, the hush-hush policy of exclusive dating needs to be abolished as well as a policy that promotes equality in practice and negotiations that need to be addressed. Organizations for this purpose should hold regular seminars, workshops and development programs, to encourage greater participation, support, and understanding among staff.

INDIA’S CORPORATE WORLD AND LGBTQ+ COMMUNITY

GODREJ INDUSTRIES

It is one of the first few companies to partner with the UN in the fight against homosexuality, especially in the workplace. According to the program, it changed some policy in the workplace. Names like “spouse” have been replaced by “partners”. LGBTQ people are also given a three-month leave that is paid for the care of their children if they choose to adopt. Health insurance coverage includes same-sex partners.

INFOSYS

It has been one of the few companies to form a staff resource group called ‘Infosys Gays Lesbians and You’ (IGLU) to unite their LGBTQI + employees. The focus of the human resource team should change the policy change and support that can help LGBTQI + employees work better in the workplace.

INTUIT

Intuit being one of the best companies to work with in 2017, it has its own Pride Network and has been promoting the construction of safe spaces in all offices. In addition, Intuit provide counselling sessions when specialists are brought in to give advice to all employees. There is a constant focus on building greater awareness of LGBT inclusion.

Few companies other than the ones mentioned above have a clear policy of non-discrimination in India. Barclays is one of the LGBTQI + friendly companies that believes in equality of opportunity regardless of gender or sexual orientation.

CAN YOU WORK WITH A LESBIAN, GAY, BISEXUAL, TRANSGENDER, OR GENDERQUEER INDIVIDUAL?

  1. Yes, as we should understand their plight and we want them to feel welcome, in one way or another in the separation of other heterosexual people. To this end thehuman resource  policies of all companies must be restructured as follows:

Harassment and Non-Discrimination: Anti-harassment and non-discrimination policies should prevent harassment and discrimination on the basis of gender or sexual identity in the workplace. There should be appropriate committees set up in every company that deal directly with cases of harassment and discrimination in the LGBTQI + community.

 Vacation and break benefits: These policies should cover holidays, holidays, sick leave, and other forms of time off, or other leave in accordance with company. This should be done in order to grant maternity leave to those gay couples or other LGBTQI + community couples.

Health: Health benefits or insurance should cover the partner of LGBTQI + community individual and not only the spouse of heterosexual person.

Employee conduct: Employees should have strict policies regarding violence against homosexuals, homosexuals, gays and lesbians.

Other HR activities: The HR Department must draft programs which are directed towards development of the community. Manager must also develop gender-neutral policies and focus on zero tolerance for discrimination.

CONCLUSION

India is a vast and diverse country and attitudes towards this subject and experiences of LGBTI individuals vary vastly. The disparity between urban and rural India, language, caste, class and gender add further complexities to understanding this topic more fully. But what we do know is that India’s LGBT citizens are not a “minuscule minority”. They have a voice that is strong and refuses to be silent any longer in their efforts to reclaim equality.

So, with the draconian Section 377 gone, what’s the way forward? Today we celebrate the International Day Against Homophobia and Transphobia. May 17 was specifically chosen to commemorate the World Health Organization’s decision in 1990 to declassify homosexuality as a mental disorder. This day has received official recognition from several states, international institutions as the European Parliament, and by countless local authorities. Most United Nations agencies also mark the occasion with specific events.

There is still much that remains to be done if the civil rights of LGBT persons in India are to be protected. LGBTQ have the absolute and inalienable right to define themselves in their own terms and in their own languages. They have the right to express themselves and their identities without fear of violence or retribution. LGBTQ are human beings, holders of human rights, and they need to get recognized as such within the societies we live in.

Name of Author: Tanushri Sharma, Vivekananda Institute of Professional Studies; Kartikey Gaur, University School of Law and Legal Studies, Guru Gobind Singh Indraprastha University.

                                                                                     

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