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