Law and Sexuality
Lesbian, Gay, Bisexual and Transgender (LGBT) Rights
Background
The term LGBT is a loose acronym denoting lesbians, gays, bisexual and transgenders and is inclusive of all forms of diverse sexualities. The operation of Section 377, Indian Penal Code (1860) that criminalised all forms of non-peno vaginal sexual acts, till recently, remained the biggest impediment to the full expression of sexuality and personhood of LGBTs. In July, 2009, the Delhi High Court in the Naz Foundation v. Government of NCT, Delhi and Others (160 DLT 277) decriminalized adult consensual same sex relations in private, thereby paving the way for the recognition of constitutional rights of equality, liberty and dignity of LGBT persons.
Section 377, IPC was ostensibly applicable to both heterosexuals and homosexuals but it was mostly used as a tool by police to harass, extort and blackmail men having sex with men. It also prevented homosexual men from seeking legal protection; for fear that they would themselves be penalized for sodomy. The law made consent and age of the person irrelevant by imposing a blanket prohibition on all non-peno vaginal sexual acts under the vague rubric of ‘unnatural offences’.
In 2001, the Lawyers Collective on behalf of Naz Foundation (India) Trust, an NGO working on male sexual health and sexual minorities, filed a writ petition in Delhi High Court challenging the constitutionality of Section 377 on grounds of violating right to equality, right to non-discrimination, right to freedom of expression, right to life and personal liberty that included right to privacy, dignity and health. In July 2009, the Delhi High Court held that “Section 377 IPC, insofar it criminalizes consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution. ”
15 Special Leave Petitions (SLPs) have been filed against the High Court’s decision in the Supreme Court of India. The Government of India has, however not filed an appeal. A few interventions in support of the judgment have also been filed. On behalf of Naz, the Lawyers Collective has filed a comprehensive counter affidavit against the SLPs. The matter is scheduled to be heard on 19th April 2011.
In another case, the Lawyers Collective moved the Allahabad High Court to defend the right to equality and non-discrimination of a gay University Professor.
Besides, the Unit provides legal aid and representation to lesbian and transgender persons, who predominantly complain of intimidation and violence by the family, gender discrimination including access to sex re-assignment and detention on charges of begging or causing public nuisance. The Unit also conducts sessions on law and rights of LGBT persons, on request
Sex Work
Background
Historically, sex work was neither condemned nor criminalized in India. Sex workers were treated with respect and reverence in ancient times, tolerated in the medieval period and medically regulated during colonial rule. Presently, female, male and transgender sex workers are confronted with the punitive regime of the Immoral Traffic (Prevention) Act (ITPA), 1956. The ITPA was enacted following India’s ratification of the United Nations Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others (1949). Previously known as the Suppression of Immoral Traffic in Women and Girls Act (SITA), the Act does not criminalise prostitution per se, but proscribes nearly every activity related to commercial sex.
Offences under ITPA include brothel keeping, living on earnings of sex work, procuring, inducing or detaining for prostitution, with or without consent, prostitution in areas notified by Police and near public places and soliciting. Penalties are higher for crimes involving children (<16 yrs) or minors (< 18 yrs). All offences are cognizable, that is, Police do not require a warrant to arrest or investigate. ITPA also accords wide powers to search, remove detain and evict sex workers, under the purview of ‘rescue and rehabilitation’.
Studies have shown that instead of protecting women, ITPA has been used primarily against female sex workers on charges of soliciting. The embargo on brothel keeping has pushed sex workers onto the streets or other dangerous sites. Frequent raids disrupt HIV intervention services by creating fear amongst sex workers, resulting in their dislocation or involuntary detention in ‘protective’ homes. Sex workers are prevented from supporting their families, including children above the age of 18, who risk being arrested for living on sex work money. There is an urgent need for sex work law reform, a demand that the Unit is raising together with sex workers’ organizations.
In 2006, the Government of India proposed to amend the ITPA by introducing the Immoral Traffic (Prevention) Amendment Bill, 2006 in the Lok Sabha. Though purporting to decriminalize soliciting, it sought to criminalize clients of sex workers by making any person who visited or was found in a brothel liable to punishment. Modeled on the Swedish Law on Prohibition of Purchase of Sexual Services, 1999, the ITPA Amendment Bill was vigorously opposed by sex workers. Owing to its contentious provisions, the Bill was referred to the Parliamentary Standing Committee on Human Resource Development and later, Group of Ministers. The Lawyers Collective intervened in the legislative process, submitting critiques and mobilizing community and civil society pressure against further criminalization of sex work. The stringent criticism on legal, political and public health grounds resulted in divergence of opinion within the government. Consequently, the ITPA Amendment Bill lapsed in February, 2009.
Internationally, there are different legislative approaches to sex work. The Lawyers Collective sought to examine these models in terms of their impact on sex workers’ lives as well as HIV transmission in paid sex.