This article is written by K Maria Yoshitha of 5th Semester of Amity law school, Noida
Abstract:
This research paper delves into the controversial question of whether the criminal justice system should have the authority to restrict relationships based on gender. We explore the effects of such restrictions on the personal rights of humans and the principles of equity and nondiscrimination versus cultural and religious beliefs. Through an analysis of the Indian constitution and statues, human rights principles, and legal precedents, this study aims to establish an optimal equilibrium between societal interests and individual freedom within the framework of the judicial system.
Keywords: criminal justice system, relationship restrictions, gender-based restrictions, equity vs. individual rights, LGBTQ+ rights.
Introduction:
In societies worldwide, the criminal justice system has exercised its authority over personal relationships, often centering its restrictions on gender. These restrictions, although rooted in historical and cultural contexts, have come under scrutiny due to their implications for individual human rights, the pursuit of equality, and non-discrimination.
History and cultural beliefs have always played an important role in shaping these restrictions in the past; therefore, through this paper, we explore historical context, relevance in contemporary society, constitutional principles, human rights frameworks, and legal precedents. We seek to navigate the complex terrain of societal interests versus individual freedom within the criminal justice system. Ultimately, the central question this research paper aims to address is: Should the criminal justice system have the right to impose restrictions on relationships based on gender?
Understanding the Indian Criminal Justice System’s Authority
The criminal justice system is vital to society because it upholds law and order, defends individual rights, and helps ensure that justice is served. Its foremost objective is to investigate, prosecute, and adjudicate criminal cases in order to protect public safety, uphold the rule of law, [1]and preserve principles of fairness and equity[2]. However, there is scrutiny (due diligence) surrounding the extent of its power to control interpersonal relationships, particularly those based on gender.
Within the Indian context, when it comes to regulating interpersonal relationships, the criminal justice system has authority but also certain restrictions. The system must operate within the constraints imposed by constitutional clauses and fundamental rights, even though it has the power to intervene in situations that may pose a threat to morality or public order. [3]These protections from arbitrary state interference and guarantees of one’s right to privacy[4], dignity, and equality before the law are enshrined in the Indian Constitution. [5]
There is a very delicate balance between power and limitations.[6] While various statutes and legal provisions grant the system the power to regulate certain aspects of relationships, such as marriage and domestic violence, for instance, the Protection of Women from Domestic Violence Act, 2005, empowers the criminal justice system to intervene in cases of domestic violence, irrespective of the gender of the parties involved[7] (Government of India, 2005).
On the other hand, constitutional principles and human rights frameworks act as a checkpoint and balance state intrusion into personal rights and discrimination based on gender or sexual orientation. [8]They guarantee fundamental rights under Article 14, which include the right to privacy, non-discrimination, and equality before the law.[9]
The right to privacy, as recognized by the Supreme Court of India in the Putt swamy judgment, reinforces the importance of personal autonomy and limits the state’s interference in private relationships [10].
Understanding the historical context and societal attitudes towards LGBTQ+ relationships is crucial to comprehending the dynamics of the Indian criminal justice system’s authority. Historically, India, like many countries, has experienced a struggle in recognizing and accepting LGBTQ+ relationships. The decriminalization of consensual same-sex activity in the landmark Navtej Singh Johar v. Union of India judgement in 2018 marked a significant shift towards recognizing the rights and dignity of LGBTQ+ individuals. [11]However, societal attitudes and prejudices persist, and deep-rooted biases and cultural norms pose challenges [12]to the full acceptance and protection of LGBTQ+ relationships within the criminal justice system.
Impact of Gender-Based Relationship Restrictions on LGBTQ+ Right
Gender-based relationship restrictions disproportionately target and impact the LGBTQ+ community. These restrictions can result in the denial of recognition and legal protections for same-sex relationships, hindering LGBTQ+ individuals’ ability to form and maintain meaningful partnerships. Such restrictions can contribute to social stigmatization, exclusion, discrimination, and marginalization of LGBTQ+ individuals, undermining their well-being and sense of belonging in society even more facing face challenges in accessing essential rights and benefits, such as inheritance rights, healthcare decision-making, and parenting rights, due to the absence of legal recognition for their relationships. Understanding these effects on individuals is crucial for recognizing the human cost of such restrictions.
Violations of Individual Rights: Imposing relationship restrictions based on gender raises significant concerns regarding the violation of individual rights. LGBTQ+ individuals have the right to autonomy, privacy (Article 21, and non-discrimination (Article 15), equality before law (Article 14), freedom of expression (Article 19) are rights guaranteed by constitution to all individuals irrespective of their sexual orientation or gender identity, which can be compromised when their relationships are subjected to legal restrictions. Such limitations infringe upon their freedom to express their identities, form consensual relationships, and enjoy the same rights and protections as their heterosexual counterparts.
Additionally, International human rights standards, conventions and treaty such as Universal Declaration of Human Rights[13], the International Covenant on Civil and Political Rights[14], the Yogyakarta principles, the European Convention on Human Rights and the United Nations’ Sustainable Development Goals, emphasis on right of equality, non-discrimination, freedom of expression and the right to privacy and family life. These legal instruments provide a foundation for advocating for the removal of gender-based relationship restrictions and ensuring LGBTQ+ individuals’ full enjoyment of their rights.
Discrimination and Equality Principles: Gender-based relationship restrictions inherently perpetuate discrimination against LGBTQ+ individuals by treating their relationships as less valid or illegitimate. The principles of equality and non-discrimination dictate that all individuals, regardless of sexual orientation or gender identity, should be afforded the same rights and protections. Imposing restrictions solely based on gender creates a discriminatory distinction that undermines the principles of equality before the law and equal protection of rights.
In the Indian context, Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships, has been a significant legal challenge for LGBTQ+ rights. However, the landmark judgment of Navtej Singh Johar v. Union of India in 2018 decriminalized same-sex relationships, affirming the rights of LGBTQ+ individuals and highlighting the evolving legal landscape. In comparison to other jurisdictions, such as the United States [15]and Canada (e.g., R. v. Labaye), allows for a broader understanding of legal developments and their implications[16]
Examining Arguments in Favor of Relationship Restrictions: Assessing Legal Basis and Implications
While gender-based relationship restrictions are widely criticized as discriminatory, it is important to evaluate the arguments put forth by supporters. This section explores the arguments in favor of relationship restrictions, considering factors such as public interest, morality, traditional values, religious beliefs, social order, and health and reproduction. How is its critical evaluation of the legal foundation of these arguments and their potential effects on LGBTQ+ rights and social equality is necessary.
Public Interest and Social Stability Proponents of relationship restrictions often argue that these limitations are in the public interest and contribute to social stability. It is asserted that restricting relationships to traditional gender roles helps maintain societal order, as it aligns with established clear guidelines, norms and values for interpersonal relationships. According to this viewpoint, maintaining relationship limits guarantees a cohesive and peaceful community by encouraging a sense of familiarity and shared values among the populace. Additionally, because they give people a framework to manage their duties and obligations within society, they help to maintain social peace.[17]
Societal cohesiveness: The fostering of societal stability and cohesiveness is a key justification for relationship limits. People who support such limits claim that they generate a feeling of predictability and order in societies by establishing defined social boundaries and expectations. They contend that by maintaining these limitations, social peace is preserved, lowering the likelihood of society disputes and divisions
Moral and Religious Perspectives It is contended that these restrictions are necessary to uphold moral standards and religious teachings that view non-heteronormative relationships as contrary to their faith. According to some, these limitations are required to sustain moral principles and theological doctrines that consider non-heteronormative partnerships to be incompatible with their beliefs. [18]They contend that approving such partnerships might damage society’s moral foundation and result in a perception of moral decline.
Preserving Traditional Values and Cultural Heritage Advocates of relationship restrictions often emphasize importance of preserving traditional values and cultural heritage. It is asserted that these limitations are required to sustain longstanding traditions and cultural identity. Supporters claim that straying from these standards might cause society practices to erode, endangering the preservation of cultural heritage.[19]
Protecting Family Structure and VAULES it is contended that such restrictions ensure that children are raised within a stable and nurturing environment with both a male and female parental figure. Proponents believe that this family model provides optimal conditions for the Growth and development of children.
Health, Reproduction, and Biological Norms It is contended that limitations on same-sex relationships or non-heteronormative expressions of gender are justified as they do not align with biological norms of reproduction. According to this claim, limitations guarantee the survival of the human species and safeguard both public and reproductive health. Therefore, it guarantees the continuation of subsequent generations[20].
While these arguments are presented by proponents of relationship restrictions, a critical evaluation is necessary to assess their legal basis and potential implications for LGBTQ+ rights and social equality. it is crucial to critically evaluate their legal basis and potential implications. Understanding their compatibility with principles of equality, human rights, and non-discrimination becomes essential. It is necessary to explore the impact of these arguments on the rights and well-being of LGBTQ+ individuals, as well as their effect on social equality and inclusivity
Challenging Relationship Restrictions: Examining Arguments Against Gender-Based Limitations
This section critically analyzes arguments against relationship restrictions based on gender or sexual orientation on factors such as individual autonomy, equality, human rights, and societal progress, promotion of inclusive society we aim to shed light on the detrimental effects of such restrictions. We aim to challenge the assumptions underlying these restrictions and advocate for a more inclusive and equitable approach that respects the rights and dignity of all individuals.
Individual Autonomy and Personal Freedom: Individuals have the ability to express their identity, maintain their privacy, [21]and enter into consensual relationships without being subjected to limitations based on their gender or sexual orientation [22]. Advocates for LGBTQ+ rights emphasize the importance of allowing individuals to pursue relationships that are true to their authentic selves, without arbitrary restrictions imposed by societal norms.[23]
Equality and Non-Discrimination The ideas of equality and non-discrimination are at the core of a major defence of relationship restrictions. By treating people differently depending on their gender or sexual orientation, gender-based restrictions, according to critics, create inequality. They think that everyone should be given equal rights and chances in establishing and sustaining partnerships, regardless of gender identity or sexual orientation[24]. Gender-based restrictions on partnerships create negative stereotypes and deny LGBTQ+ people the same respect and rights as heterosexual couples.[25]
Societal Well-being and Mental Health Relationship limitations are criticsed for having a detrimental effect on society’s well-being and mental health. Limitations based on gender contribute to the stigmatization and marginalization of LGBTQ+ people, which raises the prevalence of mental health problems such despair, self-harm, and anxiety[26]. Eliminating these limitations promotes a more tolerant and inclusive society where people may prosper without worrying about discrimination or judgement. These limitations produce an exclusive society that ignores the variety of connections and identities that exist. Criticism encourages valuing variety., promoting inclusivity, and working towards a society that values and respects all individuals, regardless of their gender or sexual orientation.[27]
Multiple Identities and Intersectionality Gender-based restrictions do not take into consideration people’s varied identities and experiences. Advocates argue that people might have numerous identities that overlap with their gender or sexual orientation, such as race, ethnicity, religion, or handicap. Relationship restrictions based on gender further marginalize those who already experience many types of discrimination and impede the development of an inclusive society.[28]
Conclusion
These justifications need to be contested and gender-based relationship constraints need to be eliminated, according to a critical review of these arguments. We may see the suffering caused by these restrictions and fight for more inclusive and fair societies by taking into account the ideals of individual autonomy, equality, and social development. To grasp the larger consequences and promote change, it is critical to evaluate how these limits affect people, society, and the criminal justice system.
We have examined the complex topic of relationship restrictions based on gender within the criminal justice system with a focus on LGBTQ+ rights in particular. We have emphasized the significance of finding a balance between individual rights and the authority of the criminal justice system through an in-depth analysis of arguments, legal concepts, and comparative views. We’ve looked at the justifications for relationship restrictions throughout the paper, which frequently point to social order, traditional values, religious convictions, the public interest, and societal concerns about health and reproduction.
But with an emphasis on the values of equality, non-discrimination, mental health, inclusion, autonomy, and privacy, we have critically assessed these arguments in light of legal justification and ethical concerns. These values are essential for preserving individual liberties and promoting a more diverse and equitable society. It is crucial to remember that different jurisdictions have adopted varying methods to relationship limitations when taking a global viewpoint into account. Gender-based relationship prohibitions must be eliminated, and several nations have made this recognition, which has greatly advanced LGBTQ+ rights and social equality. For instance, countries like the Netherlands, Canada, and South Africa have implemented progressive legislation changes that have improved social cohesion, increased acceptance, and mental health results.
On the other side, other nations continue to preserve discriminatory legislation and gender-based relationship limitations. The rights and dignity of LGBTQ+ people are still being violated by these limitations, which further fuel institutional prejudice and societal stigma. Countries like India, Russia, and a number of those in the Middle East have come under fire for their rigid legal frameworks, which have a detrimental effect on LGBTQ+ rights and societal attitudes. The comparison of these various strategies offers crucial understandings and lessons for a global perspective. In respect to prohibitions on romantic relationships, it emphasizes the advantages of fostering equality and non-discrimination. Positive changes have occurred in nations that have embraced equality, building a more welcoming and inclusive culture that respects the rights and dignity of every person, regardless of gender or sexual orientation.
Finally, it should be made evident that the criminal justice system has no right to restrict relationship based on gender. Our understanding and application of the law must be based on the values of equality, nondiscrimination, and respect for individual rights. Moving forward, it is essential to adopt a more egalitarian and inclusive approach so that we may strive towards a future where everyone, regardless of gender or sexual orientation, is included. By doing this, we may open the door to a day where everyone, regardless of gender or sexual orientation, is treated with the same respect, decency, and legal recognition.
References
- Constitution of India.
- Universal Declaration of Human Rights.
- International Covenant on Civil and Political Rights.
- Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.
- Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
- European Convention on Human Rights Article 8 – Right to Respect for Private and Family Life)
- LGBTI people and human rightsUN office of high commission article at https://www.ohchr.org/en/sexual-orientation-and-gender-identity/about-lgbti-people-and-human-rights
- International Covenant on Civil and Political Rights Government of India, (2005) Protection of Women from Domestic Violence Act, 2005 Retrieved from https://wcd.nic.in/act/protection-women-domestic-violence-act-2005
- [1] Justice K.S. Puttaswamy (Retd.) v. Union of India, Writ Petition (Civil) No. 494 of 2012 (2017), Supreme Court of India
- Lesbian, Gay, Bisexual and Trans People (LGBT) and the Criminal Justice System by Charlotte Knight, Kath Wilson
- 4 Issue 3 Int’l J.L. Mgmt. & Human. 2921 (2021)
LGBTQ Rights in India: An Insight into the Provisions of Marriage, Adoptions & Challenges - Social Equity and LGBTQ Rights: Dismantling Discrimination and Expanding Civil Rights by Lorenda A. Naylo
[1] Zahira Habibullah Sheikh and Another vs. State of Gujarat, and Ors. (2004 (5) SCC 353)
[2] State Of Maharashtra and Ors. vs Ravikant S. Patil on 19 March, 1991 ACJ 888, 1991 (1) Crimes 810 SC, JT 1991 (5) SC 442, (1991) 99 PLR 690, 1991 (1) SCALE 486, (1991) 2 SCC 373, 1991 (2) UJ 188 SC
[3] Maneka Gandhi v. Union of India (1978), AIR 1978 SC 597; (1978) 1 SCC 248 and Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225; AIR 1973 SC 1461
[4] Ritesh Sinha v. State of Jharkhand, (2019) 8 SCC 1, AIR 2019 SC 3592
[5] The Indian Constitution,1950
[6] Kharak Singh v. State of Uttar Pradesh (1963) AIR 1963 SC 129
[7] Government of India, (2005) Protection of Women from Domestic Violence Act, 2005 Retrieved from https://wcd.nic.in/act/protection-women-domestic-violence-act-2005
[8] National Legal Services Authority v. Union of India (2014) 5 SCC 438
[9] Article 14, the Indian constitution
[10] Justice K.S. Putt swamy (Retd.) v. Union of India, Writ Petition (Civil) No. 494 of 2012 (2017), Supreme Court of India
[11] Supreme Court of India (2018) Navtej Singh Johar v. Union of India, Writ Petition (Criminal) No. 76 of 2016
[12] Chris H. Reintges and João de Deus Gomes da Silva- The Legal Debate on Same-Sex Civil Unions in
Brazil: The Construction of Equal Citizenship within a Socio-Cultural Context of Heterosexism and Homophobia
[13] Universal Declaration of Human Rights
[14] the International Covenant on Civil and Political Rights
[15] Lawrence v. Texas, 539 U.S. 558 (2003).
[16] R. v. Labaye, [2005] 3 SCR 728.
[17] Matrimonial Causes Act 1973 (United Kingdom)
[18] Stephen Hunt, Religion and LGBTQ Sexualities Book
[19] Cai Wilkinson (2014) Putting “Traditional Values” Into Practice: The Rise and Contestation of Anti-Homopropaganda Laws in Russia, Journal of Human Rights, 13:3, 363-379, DOI: 10.1080/14754835.2014.919218
[20] Ladelle Mc Whother, Queer Ecologies: Sex, Nature, Politics, Desire
[21] International Covenant on Civil and Political Rights
[22] Lawrence v. Texas (2003) – US Supreme Court case striking down laws criminalizing same-sex sexual activity
[23] Article 16 of the Universal Declaration of Human Rights
[24]National Coalition for Gay and Lesbian Equality v. Minister of Home Affairs (1999)
[25]European Convention on Human Rights Article 8 – Right to Respect for Private and Family Life)
[26] The Centre for Applied Research and Evaluation‐International Foundation Global Position Statement: Stigma, Mental Illness and Diversity Albert Persaud, N. Yoganathan, Jenny Willis, Erica Crompton, Myrna Lashley WCPRR 2019: 31-41. © 2019 WACPISSN: 1932-6270 retrieved from https://www.worldculturalpsychiatry.org/wp-content/uploads/2019/12/6.-Careif-Position-Statement-on-Stigma-Mental-Illness-and-Diversity.pdf
[27] Yogyakarta Principles on the Application of International Human Rights Law in Relation to Sexual Orientation and Gender Identity.
[28] About LGBTI people and human rights UN office of high commission article at https://www.ohchr.org/en/sexual-orientation-and-gender-identity/about-lgbti-people-and-human-rights
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