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A Significant Step towards Shedding Colonial Legacy of Discrimination and Exclusion

Barak Human Rights Protection Committee (BHRPC), a human rights group working in Assam, welcomes the judgment of the Delhi High Court in Naz Foundation and Others Vs. NCT of Delhi and Others [WP (C) No. 7455/2001] delivered on 2 July, 2009 where it is 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. The provisions of Section 377 IPC (Indian Penal Code, 1860) will continue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors.”

BHRPC held a core group discussion on the judgment and its potential in the field human rights jurisprudence in India on 8 July, 2009. Later in the day the BHRPC sent a letter to the Prime Minister of India drawing his attention to the following facts:

The 160 year old colonial provision of law enshrined in section 377, IPC was used by some police personnel mostly to extort and harass eunuchs and persons having Lesbian, Gay, Bisexual and Transgender (LGBT) orientation, because this law made their very existence a serious crime. This law effectuated stigmatisation and social ostracisation of the LGBT persons for their pursuit of happiness in private in their own way, which is completely harmless to others, for more than one and a half century and made them bereft of human dignity as every colonial piece of legislation tends to do. It was roved to be a great impediment in the efforts of prevention and intervention of HIV/AIDS, because the law drove the persons who are most vulnerable to the virus to the underground by criminalising them. The judgment forcefully reiterated the Indian ideology of inclusiveness which is ingrained deep in the essence of the society and nurtured for centuries by scraping this inhuman aspect of the law.

Now it is the turn of the Government of India to act. BHRPC believes that from the legal and human rights view point it is not advisable for the Government to challenge the decision in the Supreme Court of India or enact a law making the judgment ineffective. It has now become imperative for the Government to amend other laws to fine-tune them with this historic ruling. Drastic amendment or new legislation in the field of family law is necessary to remove discrimination against the LGBT communities in this sphere of life.

BHRPC thinks that it is also equally imperative for the Government of India to respect the direction of the Supreme Court in Shakshi Vs. Union of India [(Writ Petition (Crl.) No.33 of 1997], recommendations of the Law Commission of India made in its 172nd Report on Review of Rape Laws, recommendations of the National Commission for Women (NCW) and long standing demands of civil society organisations for amendment of laws relating to sexual offences. There are inadequacies and loopholes in both substantial and procedural laws relating to sexual offences as they stand now in the IPC, the Criminal Procedure Code, 1973 (CrPC) and the Indian Evidence Act, 1872.

Sections 375, 376, 376A, 376B, 376C, 376D, 354 and 509 of the IPC need to be amended: 1. to expand the scope of the definition of rape encompassing non-consensual penile-oral, penile-anal, body part-vaginal, body part-anal, object-vaginal and object-anal penetration beside penile vaginal penetration; 2. to make the offence gender neutral in order to provide punishment for female child-abusers; 3. to criminalise marital/spousal or intimate partner sexual assault because this offence violates the right to autonomy of one’s own body and mind etc. A new set of offences of ‘unlawful sexual contact’ should also be created beside amending sections 509 to prevent sexual harassment at work or public places. Sections 354 and 377 should be repealed altogether because it will become redundant.

A new section should be incorporated in the IPC to make it punishable for public