Legal Status of LGBTQ+ Community in India _ Crescent school of law _ M. Sheik Allaudin

 

When we fill any application for school, job, etc. we see a column gender and there will be three options in India- Male, Female, Others. What is the other option, they are none other than the LGBTQ+  Community.

Meaning of LGBT

L-Lesbian

G-Gay

B-Bisexual

T-Transgender 

Landmark Judgement for LGBTQ+ community

Naz Foundation V. Governemnt of NCT of Delhi, 2009 (Naz foundation case) the Delhi High Court held that treating consensual homosexual sex between adults as a crime is a violation of fundamental rights under Articles 14, 15, 19 and 21 of the Indian Constitution.

National Legal Services Authority V. Union of India, 2014 (NALSA judgement) the SC declared the transgender people as the third gender and should equally treat them.

Justice K.S. Puttaswamy and Anr. Vs. Union of India, 2017 (Puttaswamy Judgement) the constitution of India guarantees to each individual a fundamental right to privacy under Articles 14, 19 and 21 of the Indian Constitution.

Navetaj Singh Johar Vs. Union of India, 2018 (Navetaj Singh Johar Judgement) the SC decriminalizes Section 377 of Indian Penal Code,1860 and held that sex with an animal is only a penal offence and punishable. And Consensual sex among adults, including homosexuals is not punishable.  

Demographics of LGBTQ+ community in India

There are no official demographics for the LGBTQ+  population in India, but the government of India submitted figures to the Supreme court in 2012, according to which, there were about 2.5 million gay people recorded in India. These figures are only based on those individuals who have self-declared to the Ministry of Health. There may be much higher statistics for individuals who have concealed their identity since some homosexual Indians are living in the closet due to fear of discrimination. However, there are many websites in India which cater to gay, lesbian, bisexual and transgender communities and many people are registered and actively communicate, interact, and counsel each other through these sites. According to a popular gay dating website, which has about 1.8 million men registered from around the world, India has about 140,000 individual males registered, a figure more than Western countries like the USA (46,645) and the UK (41,021) and ranks 3rd on the list of people registered from a country; nearly 80% of them are in the 15-30 age range with the highest numbers registered in states of Maharashtra (25,564), Tamil Nadu (16,380), Karnataka (14,763) and Delhi (13,441), while cities with the highest numbers are New Delhi (13,391), Mumbai (11,001), Hyderabad (10,273) and Bangalore (8,000).

Racism faced by  LGBTQ+  community

Racism is one of the biggest problems that are faced by the LGBTQ+  community. Imagine yourself rent for the houses in the metropolitan cities is high and many of the LGBTQ+ people has able to afford them and they not getting houses because of their sexuality. Is this a democratic country?.

Status of same-sex marriages in India

In the Judgement of Navetaj Singh Jover and Union of India itself, SC has given an interpretation to same-sex marriages will be allowed in the Special Marriage Act,1954. Also in the judgement Shakti Vahini v. Union of India, the high court of Delhi interpreted that marriage between any two Hindus is valid under Section.5 of the Hindu Marriage Act,1955.

Conclusion

The LGBTQ+ community has suffered a lot in this world. They are not recognized by their families and friends. In the competitive world, they are also competing with us. For example, Shabnam “Mausi” Bano has become the first transgender member of the Legislative assembly in Madhya Pradesh.

In the United States of America, the Supreme Court struck down all bans on same-sex marriages in all 50 states in the U.S in the judgement Loving v. Virginia. Like that in India, the LGBTQ+  has no recognition for marriages among them.

LGBTQ+ community has a significant population in the world so why don’t they have a separate statutory body for regulating their marriages. So they can be legally recognized by society. They are not asking for reservations they are only telling us to treat them equally by giving legal recognition, they are also taxpayers to the Indian Government. They are not committing any crime it's their nature. So, nature has recognized them, Why can’t we legally recognize them.

THANKYOU!

 

References:

 SCC Online

Indian Penal code,1860

Hindu Marriage Act, 1960

Special Marriage Act,1959

Indian Constitution.

Image Sources:

Made in adobe illustrator and Canva

PRESENCE OF THE PRINCIPLES OF NATURAL JUSTICE IN THE ANTI-TRUST PROCEEDINGS FOLLOWED IN INDIA_SUJAN

Finding its origin from Roman Law, the Principles of Natural Justice (PNJ) are not expressly codified into our statutes but they act as the essence of every provision of law made by the State. Adhering to the principles of natural justice in every Statute legislated, in every Administrative Action and judicial proceedings or decisions has become an implicit mandate. As aforesaid, every proceeding taken in furtherance of granting justice, needs to follow the principles of natural justice. In this text, the author aims to relate these principles with the Anti-Trust Proceedings of India.

THE PRINCIPLES OF NATURAL JUSTICE

The State has a primary duty to protect the citizens, maintain peace and uphold justice at all instances. The law that we term as “Natural Law” evolved three principles, which are called as the Principles of Natural Justice. The principles are as follows:

(i) Nemo debet essc judex in propria causa.

(ii) Audi alterem partem, and  

(iii) Speaking orders or reasoned decisions.

Nemo debet essc judex in propria causa 

Firstly, the principle speaks about undue influence or partiality in decisions. It translates in English to “one shall not be the judge in his own cause or the cause he is interested in”. This in general practice is called as Doctrine of Bias. To put it in simple terms, the judicial authority or any authority pronouncing a judgment must never be biased and pass decisions impartially based on the law of the land. This also prohibits all kinds of nepotism practiced by the deciding authorities while delivering any decision.

Audi alterem partem 

The second principle of natural justice literally translates to “hear the other side”. The decisions made by a deciding authority, should never be based on hearing only one side, which will lead to a decision, leaned towards that side. To avoid such an injustice, this principle mandates that both sides of a lis or issue need to be heard and only then a rational decision can be reached at. This principle is further extended and supplemented by the maxim “qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit”, which means that if a judge or the deciding authority, without hearing the other side or party, even though whatever he said was right, passed a judgment such a judgment will not be deemed to be right”.

Speaking Orders or Reasoned Decision 

The third principle of natural justice mandates issuing of speaking orders or reasoned decisions. Though this principle was not founded by the Roman Law, it is a resultant of advancements made in law and product of judicial pronouncements. According to this principle, the deciding authority or the judge shall give reasons for the particular decision passed by them, which shall be well founded and supported by the law. Thus, issuance of reasoned decisions forms a vital part of principles of natural justice.

WHAT ARE ANTI TRUST LAWS AND PROCEEDINGS ?

The term used here ‘anti’ clearly means that it protects or prevents something. In laymen terms, the Anti trust laws are enacted by a State to protect the citizens from the unfair trade practices and predatory behaviour of the businesses. The trust imbibed in the businesses and traders by the citizens should not be lost and thereby causing loss to the citizens. The Indian Legislators in their first attempt towards legislating India’s Anti Trust Laws, enacted the Monopolistic and Restrictive Trade Practices Act, 1969. The Act couldn’t cater to the needs and intent of an AntiTrust Law and thus was repealed. In such absence, the Competition Act, 2002 was enacted and was completed in 2009. To advance healthy competition and to protect the consumers, Competition Commission of India and Competition Appellate Tribunal which was replaced by the National Company Law Appellate Tribunal, through the recent amendment, were set up by the Act.

THE PROCEDURES OF INQUIRING COMPLAINTS UNDER THE COMPETITION ACT, 2002 AND THE IMPLICIT PRESENCE OF THE PRINCIPLES OF NATURAL JUSTICE

When a consumer approaches the Commission with a complaint, the Commission presumes there to be a prima facie case, directs the Director-General of the Commission, to start an investigation and inquire the matter. The findings of the Director General are forwarded to the Commission as a report as per Section 26. This involvement of two different authorities i.e. the Commission and the Director General, in itself avoids any kind of bias or partiality, which means the first principle of natural justice is present in the initial proceeding of the Anti Trust Law, which is the Competition Act.

The next step in the procedure is, the Commission after receiving the report from the Director General, serves a copy of such report on the parties or enterprise concerned or the State, as per the circumstance. Issuing a copy of the report and the complaint to the other side, gives them a chance to understand the issue and avoid surprises. The Respondent is summoned before the Commission, where they are given a chance to defend themselves and make it clear to the Commission if there is any denial of the claims made by the complainant. This essentially means, the provision makes it a mandate to hear the other side before passing any orders by the Commission. This provision under Section 26(4) clearly shows that the second principle of natural justice i.e. Audi alterem partem is impliedly incorporated in the proceedings followed by this Act.

If the report expresses that there is no contravention on the part of the respondent, then the complainant is still given a chance to prove their claim. After hearing the claims of the complainant, the Commission if it still agrees with the findings of the Director General in the report, they can dismiss the complaint. This is said in Section 26(5), and it is another facet of the second principle of natural justice, which does not encourage suits or actions taken against a person to harass them by making falsified claims and this is proved after hearing the other side and by the investigation made by another authority. The recommendations of the Central and State Government is requested, when the complaint is relating to contravention of the provisions of the Act. This Section 26(8) of the Act, stands as an evidence for the fact that there is adherence to the first principle of natural justice to avoid authoritative biasness.

Section 27 of the Act allows the Commission to impose penalties and take the compensatory actions after inquiry. The words “after inquiry” needs to be given importance in this matter and it is evident that the legislative makers made it a point, that both the sides are heard properly along with comments from unbiased authorities, to arrive at a reasoned decision. This fulfils all of the three principles of natural justice.

The Section 36 of the Act says, that the proceedings that are carried over on pursuit of a complaint or reference before the Competition Commission of India are also Judicial Proceedings and shall have the same powers as that of a Civil Court as granted by the Code of Civil Procedure, 1908. The Section further says expressly that the Commission while performing its duties shall follow the principles of natural justice. This means that the Commission is mandated to follow these principles in all of their activities and actions.

The procedure for Review of orders and decisions is also granted by the Commission under Section 37. This is allowed within thirty days from the date of issuing the orders. Furthermore, the aggrieved person, can also appeal on such orders of the Commission before the Supreme Court of India. This Appeal to the Supreme Court can be made within sixty days from the date of communication of such order of the Commission under Section 40. This time period can be condoned by the Supreme Court on the ground of sufficient cause. The Appellant can appeal on one or more grounds which are well founded by law. These two provisions clearly shows that, when a decision is not reasonable, it can be questioned and appealed upon and reviewed, thus standing as the evidence for the presence of the third principle of natural justice.

CONCLUSION

The Principles of Natural Justice can be defined as those sets of rules that are very essentially present in all statutes, administrative actions and judicial proceedings. These are evolved to protect the rights of the citizens from administrative arbitrariness and unfair decisions of the State. Though, they are not expressed in any statute, they are impliedly found in every provision of a statute. One such statute is the Competition Act, 2002 and it was analysed and shown for the readers that the principles of natural justice are present in the Act. 

Authored by,

Sujan Ganesh 

Image courtesy : www.pexels.com 

 

International Law and Human Rights

Photo designed by Larissa Punzulan on Behance

Recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

–Preamble, Universal Declaration of Human Rights

Introduction:

International Law and Human Rights plays an very important role in maintaining the moral principles for human behaviour.In the Preamble of Universal Declaration of Human Rights it clearly mentions that the Human Rights is an inalienable rights for all the members of the Human family. It means that the Human Rights is an fundamental right which is naturally entitled to all the born human being, regardless of their age, sex, religion, colour, nationality, gender, languageand ethnicity etc.Human Rights are not meant to be applicable in certain region, it is applicable in all over the universe. In order to protect Human Rights in international level, the United Nations has taken several actions, signed treaties and created an commission for human rights which is popularly known as United Nations Human Rights Council (UNHRC). In this blog, we are going to see various Human Rights issues happening around the world and steps taken in order to solve the issues and what actions may be taken in effective to solve the problems.

How does International Law protects Human Rights:

International Human Rights Law lays down obligation to countries by making them to sign international treaties in order to bring the countries under the obligation of international human rights to respect, protect and fulfil Human Rights. In order to respect the Human Rights, countries must not be interfere with individual enjoyment of human rights. In order to protect Human Rights, countries should protect the individuals and groups against human rights issue. In order to fulfil the Human Rights, countries should be ready to take positive action to fascilitate the enjoyment of Human Rights. Through the signing of treaties, countries must have to legislate rules and act upon the treaties which provides the principle protection of human rights under International Law.

Photo : Istock

The Core International Human Rights Instruments and their monitoring bodies:

There are currently nine core International Human Rights Instruments and each of instruments have certain committee members to implement the treaties provision by the countries.The Universal Declaration of Human Rights (UDHR) together with International Convenant on Civil and Political Rights with its two optional protocols and the International Convenant on Social, Economical and Cultural Rights are collectively forms the International Bill of Human Rights.

Reference OCHR – International Instruments

These are the list of Core International Human Rights Instruments.

1. International Convention on Elimination of All Forms of Discrimination (ICERD)
2. International Convenant on Civil and Political Rights (ICCPR)
3. International Convenant on Social, Economical and Cultural Rights (ICESCR)
4. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
5. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
6. Convention on Rights of Children (CRC)
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
8. International Convention for the Protection of All Persons from Enforced Disappearance
9. Convention on the Rights of Persons with Disabilities

Human Rights Violation Data of Asia from 2006 to 2014. Source : Fund For Peace

Implementation of Human Rights in Palestine – Our Actions:

We can achieve full implementation of Human Rights across the universe only when we are ready to accept the ground reality of events that are happening now around the world. For example, take this serious human rights issue between Israel and State of Palestine. In that human rights issue, Israel uses its Israel Occupation Military Forces (IOF) to detain Palestinian and open firing at innocent children which causes many casualties daily. Palestinians were tortured and illegally detained. In First Intifada, which is a protest that happened in Palestine against Israel. In the first Intifada, nearly 2,50,000 Palestinian peoples were  and more than 15,000 were lost arms or leg (Reference Middle East Monitor ). Statistics show us that more than 1,75,000 peoples were illegally detained during the first Intifada. Palestinian NGO Bt’salem states that more than 1962 Palestinian were killed. Among them more than were 300 innocent children. More than 2000 houses of Palestinian peoples were illegally destroyed by Israel. Till now, more Palestinian’s were suffering from the human rights issue. We the people of other nations should stand in solidarity with Palestine in order to protect human rights. We have to take our action against these war crimes and inhuman acts of Israel by actively participating in Boycott, Divestment and Sanction Movement (BDS movement). If we manage to suppress various funds received for Israel it will create an impact on Israel’s Economy and it will make them to obey international human rights law. Reference B’Tsalem

Human Rights Violation data of Worldwide from 2006 to 2014. Source : Fund For Peace

Conclusion:

In order to protect human rights all over the world, we must have to understand that every human beings are equal and have their own fundamental rights irrespective of their religion, sex, language, origin, race, caste, colour and nationality etc. We have to take actively participate in all activities which encourage and promote the protection of human rights. We have to voice out the crimes fearlessly against those who infringe the human rights. We need to obey the human rights law which enforced in our country.

Let’s see is it possible to protect the human rights internationally !!

CRIMINAL LAW _CRESCENT SCHOOL OF LAW_ ALBERT JASPER G.P.

What is criminal law according to the amendment? 

Firstly indian criminal law are divided into three major acts I.e 

Indian penal code 1860 {IPC} ,

Code of Criminal procedure 1973 {CrPc} ,

Indian evidence Act 1872   .

These are the most used major acts in criminal law  

 

There are seven different types of crimes: 

 Crimes against persons 

Crimes against property 

Hate crimes  

Crimes against morality  

White collar crimes  

Organized crimes  

A sociological looks at crime  

Crimes against persons:   

An crime against an individual is called as personal crimes ie murder, rape, robbery, assault etc... these are all considered as crimes against persons. A person being harmed by another person is called as crimes against persons.

Relevant case laws:  

vishakha and others v the state of rajasthan 

In a case which deals with the sexual harassment of a women in workplace. bhanwari devi who was a social worker in rajasthan  

She worked under a social development of rural level which was about to stop child marriage in a village and the social program was initiated by the government of rajasthan  

Bhanwari devi en-devoured to stop the child marriage of ramkaran gujjar’s daughter, who was merely less than one year which means she was an infant only  

As a part of her duty she tried to terminate the marriage of the infant daughter. 

 

 social punishments or boycott

On September 1992 she was been gang raped  by ram gujjar and his five friends in front of her  husband. 

After that she was only left with the bloodstained dhoti of her husband to wrap her body, as a result of which they had to spend their whole night in the police station. 

The trial court made the discharge of the accused people for not being guilty.  

The high court in his judgement propounded that it was a case of gang rape which was conducted out of revengeful situation. 

All these statements and judgements, aroused women and NGO’s to file petition  

(PIL) in supreme court of india. 

JUDGMENT: 

The judgment of Vishakha's case was conveyed by Chief Justice J.S Verma as a representative of Justice Sujata Manihar and Justice B.N Kripal on account of writ petition which was file by Vishakha the victim of this case. The court observed that the fundamental rights under Article 14[2], 19[3](1)(g) and 21[4] of Constitution of India that, every profession, trade or occupation should provide safe working environment to the employees. It hampered the right to life and the right to live a dignified life. 

The court also suggested to have proper techniques for the implementation of cases where there is sexual harassment at workplace. The main aim/objective of the Supreme Court was to ensure gender equality among people and also to ensure that there should be no discrimination towards women at their workplace. 

After this case, the Supreme Court made the term Sexual harassment well defined, accordingly any physical touch or conduct, showing of pornography, any unpleasant taunt or misbehavior, or any sexual desire towards women, sexual favor will come under the ambit of sexual harassment. 

  Crimes against property: 

Crimes against property: Here a person’s property is being harmed. property crimes involve the theft of property without bodily harm to an an individual person but his property is been harmed, such as burglary, vehicle theft etc…

Here a person’s property is being harmed. 

 property crimes involve the theft of 

 property without bodily harm to an an 

 individual person but his property is  

been harmed, such as burglary, vehicle theft etc…  

Hate crimes:   

Hate crimes are crimes against persons or property that are invoking of race, gender, gender identity, religion, disability or ethnicity

 Crimes against morality: 

Crimes against morality are also called as victimless crimes because there is no complainant or victim in these crimes eg: Prostitution, gambling, illegal drug use are the examples for victimless crimes.

White collar crimes: 

White collar crimes is a non-violent in  

nature and includes public corruption,  

fraud, bribery, mortgage fraud, money  

laundering these list keeps on goes up. 

 In short term white collar crimes are  

committed by business and government  

officials. This includes emblazing (stealing money from employees). And other infringement of income tax laws  

Relevant case law: 

Satyam Scandal: biggest-ever corporate accounting  fraud. This scam came into light on 7th January,  2009 by way of a confession letter  written by B. Ramalingam Raj. The  letter confessed to manipulating his  books of account by overstating the  assets and understating liabilities. 

The books of accounts are the reflection  of the company’s financial standing. 

They act as an important tool on which investors can rely on before investing their money. Accounts books were manipulated to cheat investors and shareholders. 

The whole scam cost approximately ₹14,000 crore and is considered to be an important factor which contributed to the recession of 2009. 

In this scandal, SEBI hit back strongly, holding Ramalinga Raju and nine major associates and guilty of insider trading, indulging in fraudulent and unfair trade practices. SEBI directed the accused to pay approximately ₹3000 crores within 45 days and also debarred them from accessing the security markets in any way for 14 years. SEBI managed to lash back strongly to ensure such a scam never happened again

Organized crimes:  

Organized crimes is committed by the structured groups of typically involving the distribution and sales of illegal goods and services. It is not described as mafia but the term can refer as any group that exercises control over large illegal enterprises such as drug trafficking, gambling, weapons smuggling, or money laundry. 

Sociological looks at crime:  

In sociological looks of crimes it considers the term of race, gender, class. For instances young urban poor black and brown people are being arrested and convicted more than others for personal and property crimes. To sociologists the question is this reflects actual difference in committing crimes among different groups or whether this reflects differential treatment by the criminal justice system. The answer is both. 

 

 

Image source:  

Criminal law images from  

Myonlineshiksha blog (https://blog.myonlineshiksha.com/storage/2021/04/POCSO-Act.jpg) 

 Pinterest (https://in.pinterest.com/pin/437904763750236882/) 

Property crimes image source from  

Richardfinklawoffices  

(https://www.richardfinklawoffices.com/what-are-property-crimes/?hl=en_US)

Morality crimes image Source from  

Wisefamousquotes (https://images.app.goo.gl/nXcK5yiudPkYxphg8)

White collar crimes image source from  

Knowlaw.in  

(https://knowlaw.in/wp-content/uploads/2021/06/White-Collar-Crimes.jpg?hl=en_US)

Indiablooms  

(https://www.indiablooms.com/news-details/N/9617/satyam-scam-raju-nine-others-convicted.html)