Statement Of Bhrpc On The Judgment Of The Delhi High Court On Homosexual Activities

OFFICE OF THE

BARAK HUMAN RIGHTS PROTECTION COMMITTEE Rongpur Part-iv (Near Uco Bank), Silchar - 9, Cachar (Assam)

FOR EQUALITY, A human rights organisation of the nature as is contemplated under Sec 12 (i) of the JUSTICE Protection of Human Rights Act, 1993 and registered under AND PEACE the Societies Registration Act, 1860. E-mail: [email protected], FAX- 03842-263592; WebPages: http://bhrpc.net.googlepages.com

Ref. No. BHRPC/

Date:31-10-2008

For Immediate Release

Statement of BHRPC on the Judgment of the Delhi High Court on Homosexual Activities

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 legitimised 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 proved 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, objectvaginal 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.

Contd. to next page

OFFICE OF THE

BARAK HUMAN RIGHTS PROTECTION COMMITTEE Rongpur Part-iv (Near Uco Bank), Silchar - 9, Cachar (Assam)

FOR EQUALITY, A human rights organisation of the nature as is contemplated under Sec 12 (i) of the JUSTICE Protection of Human Rights Act, 1993 and registered under AND PEACE the Societies Registration Act, 1860. E-mail: [email protected], FAX- 03842-263592; WebPages: http://bhrpc.net.googlepages.com

Ref. No. BHRPC/

Date:31-10-2008 Page -2

A new section should be incorporated in the IPC to make it punishable for public servant for knowingly disobeying any direction of law prohibiting him from requiring the attendance at any place of any person for the purpose of investigation into an offence or other matter or knowingly disobeying any other direction of law regulating the manner in which he shall conduct such investigation and which act of his causes prejudice to any person. Because there is a provision in the proviso to section 160 (1) of CrPC that no male person under the age fifteen years or woman shall be required to attend at any place other than the place in which such male persons or woman resides and it is often breached with impunity, which results sometimes in custodial rape of sexual assault. Provisions should be made in the CrPC and the Indian Evidence Act, 1872 in the effect that it is mandatory that the statement of a person against whom an offence under sections, 375, 376, 376A, 376B, 376C, 376D, 377 or 509 of the Indian Penal Code is alleged to have been committed or attempted, shall be recorded by a female police officer and in case a female police officer is not available, by a female government servant available in the vicinity and in case a female government servant is also not available, by a female authorised by an organisation interested in the welfare of women or children. The conduct of medical test should be made the responsibility of the police and manner of the test and report should also be prescribed. The investigation and trial of sexual offences should be time-bound and should be concluded within six months. BHRPC also recommends some amendments in the Indian Evidence Act, 1972 such as 1. a new section 114B should be introduced providing a presumption in favour of the victim as to the consent in aggravated sexual assaults; 2. Clause (4) in section 155 which permits the person accused of rape or attempt to ravish to prove that the victim was of generally immoral character should be deleted; 3. In section 146 another clause, namely, clause (4) should be added stating expressly that in a prosecution for sexual assault, it shall not be permissible to adduce evidence or to put questions in cross-examination of the person assaulted with respect to his/her previous sexual history, character or conduct whether to establish consent or otherwise; 4. The absence of a medical report in the case of a sexual assault shall not be a factor against the complainant/person assaulted etc. BHRPC urged the Prime Minister to amend the laws stated above taking in to confidence and in consultation with the citizens of the country particularly the groups of citizens interested in such matters such as women’s organisations, human rights organisations and other civil society organisations.

Issued by

(Neharul Ahmed Laskar) Secretary General

Ends