Justice Beyond Prejudice: Need Of Awakening Before It Gets Too Late

There are civilizations across the world, which may, though, profess themselves to be progressive; yet, their norms may not always illustrate a liberal thought process. In fact, it is often observed that the steering forces of such societies are certain congenital dogmas and philosophies, mostly favoring the members who comprise a majority. Resultantly, constricted approach towards anything novel or unexplored, gravely impacts those who may not austerely conform to the 'so called majority' ideals. Unfortunately, the uniqueness of such marginalized groups is typically branded as an aberration, depriving them of their basic human rights and in certain cases, the very right of existence. One such manifest prejudice, subsists towards the members of the LGBTQIA community. Regrettably, societal apathy towards these individuals is so deeply ingrained that the instances of oppression may not always emanate from external sources. On the contrary, ostracism, exploitation, name-calling, deprivation of elementary resources, etc., may originate at home (and quite early); from those endowed with a responsibility to love and cherish these relations. At the same time, neither religion nor law may provide a respite against these tyrannies, rather, may be devised in a manner to sanction these individuals for their inimitability; cataloguing their conduct as chosen urges, advocating treatment, atonement and chastisement.

The Preamble to the Universal Declaration of Human Rights ("UDHR"), inter alia, professes, "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is a foundation of freedom, justice and peace in the world." Articles 3 and 5 of UDHR guarantee rights to life, liberty and security of person and protection from torture; cruel, inhuman or degrading treatment; or punishment, respectively. Further, as per Article 9 of UDHR, "[n]o one shall be subjected to arbitrary arrest, detention or exile" and Article 12 of UDHR provides, "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." Similar provisions are also enshrined under the International Covenant on Civil and Political Rights, in particular, under Articles 6, 7, 9 and 17 thereof. Therefore, seen in the context of these provisions, severe acts of violence and discrimination faced by the individuals on the basis their sexual orientation and gender identity are in direct conflict with their basic Human Rights. Accordingly, appreciating a need of documenting, "discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity", the United Nations General Assembly requested^[1] the United Nations High Commissioner for Human Rights ("High Commissioner") to conduct a study in the said direction in the year 2011. Consequent to this mandate, a report^[2] was submitted to the Human Rights Council by the High Commissioner, inter alia, proposing certain recommendations aimed towards prevention of torture, enactment of comprehensive anti-discriminatory legislation, implementation of appropriate sensitization, facilitation of legal recognition of the preferred gender/ gender identity, etc. Subsequently, based on a request made by the Human Rights Council, vide its resolution 27/32, the High Commission submitted an updated report^[3] on May 4, 2015, inter alia, professing a need of review of criminal law(s), "to remove offences relating to consensual same sex conduct and other offences used to arrest and punish persons on the basis of their sexual orientation and gender identity or expression.." This entire exercise culminated with the adoption of a resolution^[4] by the Human Rights Council on July 15, 2016, thereby; deprecating the acts of violence and discrimination committed against individuals based on their sexual orientation or gender identity; appointing an Independent Expert; calling upon all States/ member states to cooperate with the Independent Expert in the discharge of its mandate; etc. Significantly, as per its mandate, the Independent Expert is obligated to receive information and complaints regarding alleged instances of violence or discrimination against individuals on the basis of their sexual orientation or gender. At the same time, such an expert is required to submit its annual report to the United Nations General Assembly and Human Rights Council.

Though, it may seem quite appalling, yet, there are several counties across the globe which prescribe capital punishment for homosexuality or differential gender identity, on a pretext that the same runs contrary to the 'so called normal behavior'. Pertinently, the proponents in favor of such sanction justify their case by arguing that it is a means to assure prevention of spread of certain diseases, such as; HIV-AIDS, besides curbing 'immorality' and maintaining fabric of society. However, these arguments are grossly misconceived and founded on an inherent bias towards the members of the said community. In reality, these pre-conceptions are manifestations of a thought process that considers a class of individuals lesser than other, basis their identity and orientation. Per contra the protagonist fighting the other side of the battle, validly justify their claims on the basis of every individual's inalienable rights to life, privacy and independence. In reality, their claim is premised more on an acknowledgment of these rights, in distinction to their conferment by any authority or society.

Significantly, the shackles of ignorance that were tied upon the Indian Society in form of one such punitive provision under S. 377 IPC were quite recently broken by the Supreme Court of India in Navtej Singh Johar v. Union of India. Appositely, prior to the delivery of the said authoritative pronouncement, the High Court of Delhi in Naz Foundation v. Govt. (NCT of Delhi) declared the said penal provision, "insofar it criminalizes consensual sexual acts of adults in private [as] violative^[5][6][7] of the [Indian] Constitution." While deciding so, Delhi High Court, at the outset, dispelled the argument that diseases such as; HIV-AIDS, etc., are propagated solely due to homosexual conduct and affirmed that homosexuality is not a disease or a disorder, rather, another expression of human sexuality. At the same time, it was recognized that the acknowledgment of right to live and liberty to an individual/ group cannot be detained merely on the basis of public disapproval of certain acts and that any restrictions to such right must conform with the standards of constitutional morality, in distinction to popular morality. However, regrettably, the country recoiled where, initially, the said pronouncement of the High Court did not find favour^[8] of the India's Apex Court, inter alia, under an observation that the said penal law could not be struck down by Court(s), "merely by virtue of its falling into disuse or the perception of the society having changed as regards the legitimacy of its purpose and its need". (Suresh Kumar Koushal v. Naz Foundation)

However, by its pronouncement in Navjet Singh Johar's case, a five Judges' Bench of the Supreme Court upheld the decision of the High Court of Delhi under similar observations. Laudably, India's Apex Court did not refrain its opinion while observing, "History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries." In fact, it was further unmistakably acknowledged by the Court that prejudices which prevailed against the members of the said community were attributable solely due to the ignorance of the majority who failed to recognize homosexuality as a range of human sexuality, leading to deprivation of such individuals of their basic rights of equality, dignified life, privacy, etc. Appositely, the conclusion of the Apex Court were based on the analysis of the said aspect from the perspectives of human dignity, privacy and its concomitant aspects, doctrine of progressive realization of rights, international view(s), etc. At the same time, the Court, inter alia, appreciated, "homosexuality is something that is based on sense of identity. It is the reflection of a sense of emotion and expression of eagerness to establish intimacy. It is just as much ingrained, inherent and innate as heterosexuality. Sexual orientation, as a concept, fundamentally implies a pattern of sexual attraction. It is as natural a phenomenon as other natural biological phenomena." Further, despite curtailment of ambit of penal provision, laws relating to marriage, divorce, property rights, etc., of same sex-couples are still wanting in India.

Pertinently, way prior to the Indian Courts' acknowledgment of rights of gender identity/ sexual orientation, several Courts across the world had expressed similar observations and declaration of law. In one such instance, in Lawrence v. Texas 539 US 558 (2003), the United States^[9] affirmed that the right of adult individuals (homosexuals) to engage in sexual activities was personal and that a law which prohibits such acts between consenting adults is unconstitutional. Similarly, Court(s) of Alberta in Vriend v. Alberta [1998] 1 S.C.R. 493, inter alia, observed, "[f]ear of discrimination will logically lead to concealment of true identity and this must be harmful to personal confidence and self‑esteem. Compounding that effect is the implicit message conveyed by the exclusion, that gays and lesbians, unlike other individuals, are not worthy of protection. This is clearly an example of a distinction which demeans the individual and strengthens and perpetrates the view that gays and lesbians are less worthy of protection as individuals in Canada's society. The potential harm to the dignity and perceived worth of gay and lesbian individuals constitutes a particularly cruel form of discrimination." Notwithstanding, the general acceptance and recognition of homosexuality as one forms of sexual expression, it is quite overwhelming to observe that a large part of the said community is still confined by either ideologies, religion, law, so called family norms, societal pressure, etc.

Undoubtedly, acceptance is directly relatable to an individual's openness about a concept or idea. However, a mind which is often programmed to form a perception based on certain stored information or preconceptions, finds it extremely difficult to shatter the confines of its constricted will. Regrettably, the law makers and interpreters, may, at times, also suffer with prejudices which refrains them from viewing an aspect with a holistic view. Nevertheless, it takes courage to accept one's fallibility and a desire to work towards it. Notably, in one such illustration, recently, a Judge of High Court of Madras (Read order: Mrs. S.Sushma v. Director General of Police) while dealing in the issues of same-sex relations and (police) protection to such individuals, did not refrain from acknowledging his preconceived notions about the said issue, however, expressed a desire to understand and (consequently) evolve, noting, "it would have been possible for me to pack my order with a lot of research material and get applauded by the outside world for rendering a scholarly order. There was a call from inside which kept reminding me that if I venture into such an exercise at this stage, it will only be hypocritical of me since the order will not reveal my true and honest feeling about this very important issue….I am trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners…" Subsequently, while acknowledging his responsibility to pass directions/ order^[10], which emanate(d) from heart and not head, the Judge duly admitted that he was not fully "woke" on the said aspect and accordingly, decided to subject himself to psycho-education with a psychologist to appreciate the concept better. (For details, click here)

Mahatma Gandhi once remarked, "Mutual tolerance is a necessity for all time and for all races." Understandably, the foundation of disparity against the members of LGBTQIA community is laid on barbaric thought process, which negates an individual's fundamental rights and degrades the entire community as insubstantial. This community is compelled to persistently suffer the rigors imposed not only by discriminatory and unjust laws, rather, deprived of their inherent right to love and be loved by others, including their own family members. Regrettably, their bodies are subjected to malnourishment and impoverishment not only of basic commodities and essentials for living, rather, are made to bear humiliation, unspeakable atrocities, physical and sexual violence, stigmatization, etc. Unfortunately, the genesis and perpetuation of such instances are ignited and rooted in the concepts of prejudice and narrow thinking/ approach, which inhibits secession of concepts of injustice and judgment from love. On the contrary, as the evolved societies, law principles and thought processes profess, the present day's imminent need is to permit love and equality to prevail and to shatter the fetters of predispositions and prejudices. It is only when society accepts this community's rights, can the world progress at large at the same time profess itself to be educated and progressive. As Aleksandr Solzhenitsyn once remarked, "intolerance is the first sign of an inadequate education. An ill-educated person behaves with arrogant impatience, whereas truly profound education breeds humility."

Views are Personal

The Author is an Advocate at the Supreme Court of India