(See Below for Case Law, Evidence of Public Attitudes, NGOs that Assist or Advocate on LGBTI issues, and Country of Origin LGBTI Specialists)
LEGAL INFORMATION:
Homosexuality and bisexuality are no longer considered a criminal offence in India. However the role of transgenders is still undefined as India has a substantial population of hijra (eunuchs or hermaphrodites) that consider themselves a ‘third sex’.
The Indian Penal Code S.377 ‘Of Unnatural Offences’ states that:
‘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 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.’
Prior to Naz Foundation v Government of NCT of Delhi and Others [2009] WP(C) No.7455/2001, unnatural offences included sexual (or carnal) intercourse of all kinds that did not have ‘the possibility of conception of human beings’ including oral sex and sex between members of the same gender. It also made reference to transsexuals and intersex, whose behaviour was often classed as an unnatural offence.
On the 2nd of July 2009 the High Court of New Delhi declared that S.377 of the penal code violated articles 14, 15 and 21 of the Indian Constitution. It has done so by declaring sexual preferences and orientation to be part of an individual’s private life (which they have inviolable rights to under Article 21) and by interpreting the word ‘sex’ in articles 14 and 15 to mean sexual orientation as well as gender.
The case is currently being challenged in the Supreme Court of India.
CASE LAW:
Naz Foundation v Government of NCT of Delhi and Others [2009] WP(C) No.7455/2001, – Decriminalized homosexual behaviour and sexual activities in India.
PUBLIC ATTITUDES AND/OR STATE’S CAPACITY TO PROTECT:
The Third Sex:
The following information has been gathered from the United Nations Development Programme Report of December 2010 and the PUCL-K report on Human Rights Violations against Sexual Minorities in India
In India, the hijra (also: Kothi, Aravanis, Jogtas/Jogappas and Shiv-Shaktis) are a community of people who were born as male or intersex and make a choice to live in a community that adopts feminine mannerisms and clothing. They essentially reject their masculinity. Some choose to have a gender reassignment operation. As castration is illegal in India under the Indian Penal Code S.325 (castration constitutes grievous hurt), the law states nothing about Sexual Reassignment Surgery, and as such, there are no standardized Indian medical guidelines for this procedure. This leads to a large number of people undergoing the surgery from private clinics. They can be prohibitively expensive and are not always safe.
They also suffer from exclusion, starting normally within their own families and eventually leading to society as a whole. Hijra’s are generally not accepted within society and are often treated with hostility. This treatment stems from the British enacted legislation: ‘The Criminal Tribes Act 1871’ under which hijra’s were criminalized and persecuted. This continued until the abovementioned case in the High Court that amended the meaning of S.377 of the Indian Penal Code. There are still a number of legal issues that are not being addressed in relation to hijras. The most important being lack of legal recognition of gender-identity. Because of this particular issue, they often find it hard to obtain social welfare benefits that they would otherwise be entitled to (such as government rations (food price subsidy), passports, identity cards and bank accounts). This makes the community both particularly vulnerable and largely unemployable leading to jobs in the sex trade or other illegal entertainment.
HIV/AIDS is another of the biggest threats that the hijra community faces as it is one of the groups with the highest prevalence of HIV and other Sexually Transmitted Infections (STI’s). With an estimate of over 2.5 million ‘males who have sex with males’ (MSM) sex workers in India, there is a danger that the prevalence of HIV/AIDS will continue to spread, especially as it is as high as 7.4% compared to the overall adult prevalence of 0.36%. Transgender women are at a higher risk still.
Other Issues:
A People’s Union for Civil Liberties (PUCL-Karnataka) report issued in 2001 states that one of the biggest concerns for the gay, bisexual and transsexual society in parts of India is police oppression. This takes many forms from extortion to abuse and has been well documented in several other cases, not least the Channapatna Event in 2003 – where a group of women who were working on a project to help prevent the spread of HIV/AIDS and provide counselling for sex workers, sexual minorities and slum populations were wrongfully arrested on moral rather than legal grounds.
Jammu & Kashmir:
The Ranbir Penal Code is used in the state of Jammu and Kashmir instead of the Indian Penal Code. Yet according to the Indian Courts, for all intents and purposes they are the same, and therefore S.377 of the Indian Penal Code would apply. As the Naz Foundation appeal is set to be heard early next year in the Supreme Court, it is unclear whether the current reading down of S.377 by the Delhi High Court applies in Jammu and Kashmir given that lower court case law decisions are not binding on the Jammu and Kashmir courts. However decisions of the Supreme Court are binding on the courts of Jammu and Kashmir as the Constitution (Application to Jammu and Kashmir) Order 1954 doesn’t exempt article 141 (giving the Supreme Court binding powers over other courts in India) of the Constitution. Judgment must be passed in the Supreme Court first before the legal stance is clarified in this state.
NON-GOVERNMENTAL ORGANIZATIONS (NGOS):
Mission for Indian Gay and Lesbian Empowerment (MINGLE)
MINGLE is a not-for-profit think tank and advocacy group that strives to challenge homophobic attitudes and to raise awareness within the LGBTI community of their legitimate rights. They have a legal guidance document that addresses basic legal issues affecting LGBTI’s on their website and also offer legal counselling through email.
COUNTRY OF ORIGIN SPECIALISTS:
We have no specialist on LGBTI for India, but would welcome suggestions.
Researched by: Shenaz Bharvaney Daswani
Email: skbd55 [at] gmail [dot] com (skbd55[at]gmail.com)