GS-II: One year after ‘Navtej Johar’, imagining an equality law.

News

One year since the SC judgment in Navtej Johar v. Union of India on Sec 377. We have moved from a society where transgender, intersex, lesbian, gay, bisexual and gender non-conforming persons were treated as criminals to constitutional recognition of rights to sexual orientation, gender identity, and gender expression.

Impact of the judgment:

• The recognition of these rights impacts not only LGBTI persons, but everyone as it protects out rights of self-expression, equality, and autonomy.
• It laid the ground for stronger equality recognition : Judgment in the Joseph Shine case decriminalising adultery (2018) and the judgment in the Sabarimala case recognising the rights of women to enter religious shrines (2018).
• It also led to the decriminalising of same-sex intercourse in other jurisdictions such as the High Court of Botswana and inspired a constitutional challenge to Section 377A in Singapore.

Challenges:

• Decriminalization is the first step toward the recognition of equal rights. Navtej's decision has to be followed by positive steps for equality.
• Transgender persons still face a number of legal barriers and LGBTI people continue to face discrimination, exclusion, abuse, and harassment at work, school, health care settings and in public places.
• We still do not have equality and anti-discrimination law to protect persons from discrimination on different protected grounds.
• Even the only close statute, Rights of Persons with Disabilities Act, 2016. only addresses discrimination against persons with disabilities in the public sector and does not address the private sector.
• Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil Rights Act, 1955 make some discriminatory acts criminal offenses but do not provide civil remedies such as damages for acts of discrimination.
• The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 is limited to sexual harassment at work.
• The Transgender Persons (Protection of Rights) Bill, 2019 addresses only transgender and intersex persons’ rights. The rights of equality and non-discrimination on the ground of sexual orientation are not covered.

What’s Next

• Overarching legislation is needed to guarantee equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality, and other grounds.
• The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places.
• Supreme Court comes held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms.

Conclusion

Situations like what we saw in J&K show us that we need an equality law that not only addresses discrimination against individuals but also addresses structural forms of discrimination and exclusion.