Human rights are said to be those rights that an individual acquires by virtue of he or she being a human being. The United Nations has further put in place the guidelines of what they entail and this has been entailed in the Universal Declaration of Human Rights (1945). Due to the declarations being international laws, then the country has the discretion of either following it or not. In the case of India, The Constitution clearly states that for an international law to be applicable in the country, it should be provided for either by the state or municipal law (Subhash, 2005). The Constitution, however, doesn't provide for the use of international law in the determination of its cases but components of the international law are visible in the various sections of the constitution. This may be inferred from the holding of the learned judges in the locus classicus case of KeshavanandBharati v State of Kerala (1973) where the learned judges, held that the court must have in mind the United Nations Charter in determining the local cases. This, however, brings with it various challenges when it comes to cases that the municipal law and the international law conflict (Subhash, 2005).
The International Law clearly provides for individuals to be treated equally regardless of their, age, gender, religion and sexual orientation. According to the Municipal laws of India, the gay and lesbians rights are violated due to the unfavorable laws of the country. In the case of Toonen v Australia (1994) the United Nations made a stand and declared that the discrimination of an individual based on his or her sexual orientation is a violation of the human rights law. The Indian Law only recognizes three kinds of genders, the male, female and Hijra, who may be likened to the hermaphrodite in the other countries (Sheikh, 2013).
The LGBT community, which is rising at a fast pace all over the world, India included, is one whose rights are generally infringed, due to the fact that the community and the government negatively publicizing it. The members of the LGBT Community face imprisonment, harsh treatment from the society they live in and at times even death (Geetanjali, 2009). This, in turn, means that the UNDHR (1945) is undermined in all ways possible. The fact that in India even these infringements are brought on the community by the police officers may be inferred to mean that the members of the LGBT Community will in most cases not be able to have justice if individuals who are supposed to protect their rights are the ones who are in turn infringing them. This was seen by the arrests of the gays and lesbians in the country in 2014 after the enforcement of the sodomy law in the country.
Section 377 of the Indian Penal Code (1860) clearly criminalizes homosexual intercourse and this means that in cases that the adult homosexual individuals engage in carnal knowledge, they are committing a crime and the law stipulates imprisonment. This stipulation was further entrenched into the legal system of the country by the court of Delhi, when it held in the case of Naz Foundation v. Govt. of NCT of Delhi (2009), that in cases that an individual who engages in homosexual intercourses committing a crime (Pervez, 2010). This legislation has further been used by the law enforcers to intimidate the sex workers, gays and lesbians in the country.
The various Human Rights groups held protests and even brought judicial actions with the aim of ensuring that homosexuality was decriminalized. With all these steps, the government through the Ministry of Home Affairs publicly set its position against the issue of legalizing homosexuality in the country since it was against their personal laws. This action did not augur well with the international community which was against the discrimination and criminalization of homosexuality, prompting the national government to change its position. Due to this constant change in positions, the judiciary reprimanded the central government for having its stand on matters pertaining to the LGBT rights.
The LGBT community in 2013, made a stride in the fight for their recognition and upholding of their right by the government when the Supreme Court made its stand by overturning the Delhi decision and hence it allowed for the homosexual activity provided that it was a consensual agreement between the adults. However, in 2015, the legislature refused to implement a bill tabled before parliament which was aimed at decimalizing homosexuality in the country.
The rights of the LGBT community in the country may be said to be in a limping state, due to the fact of the legal system not being extremely clear on its stand. This, in fact, was further evident when the Gurgaon court allowed for a lesbian marriage to be allowed in the country whereas the laws of the country outrightly prohibited such. The prohibition of same-sex marriages is one which is against the international law, as the United Nations through its member states having in place the various programs that help to combat stigmatization and the discrimination of the LGBT community. These include the International day against homophobia and the setting up of the International lesbian and Gay association which is a committee which is entitled to ensure that the LGBT rights are upheld in the society.
In conclusion, the fact that the municipal law of India still criminalizes homosexuality, this action is against the international laws of the nations and this is shown by the decisions of the courts, enactment of the sodomy law and the country still recognizing Section 377 of the Indian Penal Code (1860)
KeshavanandBharati v State of Kerala (1973) 4scc 225
Naz Foundation v. Govt. of NCT of Delhi (2009),
Toonen v Australia (1994)
Bhardwaj K. Reforming Macaulay.The Asian Age. 5 July 2009. Athttp://www.asianage.com/archive/htmlfiles//OP-ED/Reforming%20Macaulay.html: (accessed 17-5-2016)
GeeanjaliMisra (2009) Decriminalising homosexuality in India rhm journal Available at :http://www.countmeinconference.org/downloads/RHM.MISRA (accessed 17-5-2016)
Sheikh, Danish (2013) "The Road to Decriminalization: Litigating India's Anti-Sodomy Law," Yale Human Rights and Development Journal: Vol. 16: Iss. 1, Article 3. Available at: http://digitalcommons.law.yale.edu/yhrdlj/vol16/iss1/3 [accessed 17-05-2016]
Subhash C. Kashyap (2005), The constitution of India and International Law, Bimal N. Patel India and International Law, MartinusNijhoft Publishers, Leiden , p.19.
Pervez IqbalSiddiqui (2010), Crackdown on gay party in Saharanpur. [Online] (updated ,2011) Available at: https://www.quora.com/Whats-it-like-to-be-gay-in-India[accessed 17-05-2016]
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