MAHARASHTRA NATIONAL LAW UNIVERSITY AURANGABAD

COMPARATIVE LAW
E-NEWSLETTER
I S S U E 1 • A U G U S T 2 0 2 0  

C O M P A R A T I V E L A W

E - N E W S L E T T E R

ABOUT THE NEWSLETTER IN THIS ISSUE

Devoted to the study of comparative and transnational laws
and legal systems, the Comparative Law Newsletter (CLN) is
an open access, peer-reviewed and refereed newsletter
published monthly by the Maharashtra National Law University • ARTICLES •

Aurangabad. It embraces analytical, theoretical, empirical and

socio-legal attempts surrounding the public and private law • CASE-COMMENT •

aspects of various legal systems. It aims to encourage • LEGISLATIVE COMMENT •

comparative legal studies in the transnational context of legal
history, theory, philosophy, legal cultures and traditions , by • SOCIAL SPOTLIGHT •

tracking the developments in the field across the world. The

• NEWS JACKKING •
newsletter seeks works that are dynamic and interdisciplinary
in nature with specific display of comprehensive knowledge on
the subject matter.
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TABLE OF CONTENTS
CONTENT
FROM VC's DESK.........................................................................
MESSAGE FROM TEAM.........................................................................

ARTICLES
A SALUTE TO THE STRUGGLE FOR WOMEN'S SUFFRAGE
BY AISHVARY VIKRAM & NEHA TRIPATHI .............................................................
LEGAL LANGUAGE AND GENDER INCLUSION
BY SOUMYA RAJSINGH ..............................................................................................
DRAWING A LINE BETWEEN INCARCERATION AND ABUSE: UNINHABITABLE
CONDITIONS OF WOMEN IN DETENTION
BY PRANAY BHATTACHARYA ............................................................................................
GENERAL STRAIN THEORY: DOES VICTIM HAS A GENDER?
BY ANUBHAV MISHRA ..............................................................................................
QUEER FREEDOM: THE ROAD AHEAD OF SECTION 377 DECRIMINALISATION
BY HUSAIN ATTAR & ABHISHEK SINGH...........................................................

CASE-COMMENT
STATE v. SARVJEET SINGH
BY ROHAN KAPOOR ..............................................................................................
LEGAL SEX CHANGE PROCEDURES AND THE REALISATION OF SELF
IDENTIFICATION
BY NIKITA MOHAPATRA & INDRONIL CHOUDHRY............................................

LEGISLATIVE COMMENT
SURROGACY (REGULATION) BILL, 2020
BY SIDDHANT VYAS ..............................................................................................
TRANSGENDER PERSON (PROTECTION OF RIGHTS) ACT 2019 END OF STRUGGLE
FOR RESPECT AND DIGNITY: A MYTH
BY CHETNA SHRIVASTAVA & ABHIJEET MITTAL...............................................

SOCIAL SPOTLIGHT
PROTECTION OF TRANS RIGHT : THE NEED OF THE HOUR
BY PRANALI KADAM & SHREYASHI SRIVASTAVA..................................
ADULTERY LAW CONCERNING WOMEN SYNONYMOUS TO HONOR KILLING
BY PRANSHI GAUR..........................................................................................

NEWS JACKKING
SOCIALLY DISTANCING THE SOCIALLY  DISTANT
BY DEVANSH KATHURIA & SOUMYA THAKUR..........................................

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 FROM THE VICE-CHANCELLOR’S DESK

Maharashtra National Law University, Aurangabad has been established by the

Maharashtra Government in pursuance of Maharashtra National Law University
Act, 2014. It came into operation in the year 2017 and since then has been thriving
to achieve academic excellence. The University has in the past hosted national
level seminars and conferences and has been visited by legal luminaries who
have enhanced and furthered the objective of making this institution of
national importance.

I strongly believe that it is the students, faculties and the non-teaching staff who
plays a pivotal role in the over-all development and growth of an institution. It is
under able guidance and constant support of judges, eminent legal practitioners
and academicians, that the institution is on its path of achieving excellence in the
field of legal education. This newsletter is one such initiative undertaken by the
faculty members and students of Maharashtra National Law University,
Aurangabad. This newsletter aims to bring about various discourses related to
comparative laws. It will be theme-based monthly newsletter which will promote
and enhance academic deliberations from the members of legal fraternity. In an
era where development is rapidly taking place and law is ever-expanding and
growing, the need for such inter-disciplinary approach has to be seriously
undertaken.

I am glad to present this newsletter to the legal fraternity and civil society and
encourage young scholars, academicians and students from various law schools
in the country to contribute actively to be a part of this journey and make this
effort a grand success.

I congratulate the team for their untiring efforts during this pandemic situation in
bringing this newsletter to light and wish them a success in their vision and
endeavour to reach a wider audience and facilitate scholarly discourse in
this area.
 
Wishing you all the very best!
 
Regards.
Prof. K V S Sarma
Vice-Chancellor, MNLU, Aurangabad.

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MESSAGE FROM THE TEAM

We are enthralled to launch the very first newsletter by Maharashtra National Law University,
Aurangabad. This occasion marks release of the First Volume, First Issue of the Comparative
Law Newsletter. The newsletter is an initiative undertaken by faculty members and students of
Maharashtra National Law University, Aurangabad. It is an effort to discuss and bring forward
various contemporary discourses and issues related to the domain of comparative laws.

The theme of the First Volume, First issue of the newsletter is Gender Inclusive Legal
Framework in Contemporary World. The theme was very carefully thought off and agreed upon
by the team members in the light of recent and related events and developments around the
world pertaining to this area. The First Volume, First issue is based on contributions by faculty
members, students and practitioners, however, we look forward and comprehend, that the
upcoming volumes and issues will be based on submissions by academicians, lawyers, young
students and other esteemed members of the legal fraternity.

We imbibe upon this journey together, and hope to develop a positive outcome with this effort
undertaken to develop a never-ending era of learning and growing. We would like to thank the
support and encouragement received by Hon’ble Vice-Chancellor, Prof. KVS Sarma, under
whose able guidance this newsletter has been released. We acknowledge the untiring efforts
made by the faculty in-charge and the student members who were behind the scene working
for the timely release of this newsletter. We would especially take up this opportunity to take a
few names, without whose efforts this newsletter would have never become a reality, our
student team comprising of Ms. Soumya Thakur, Ms. Nikita Mohapatra, Ms. Chetna Shrivastava,
Mr. Abhishek Singh, Mr. Husain Attar, Mr. Devansh Kathuria, Mr. Anubhav Mishra, Mr. Anuj
Agarwal, Mr. Sulabh Gupta, Mr. Rohan Kapoor, Mr. Pranay Bhattacharya, Mr. Abhijeet Mittal, Mr.
Indronil Chaudhary, Ms. Pranshi Gaur, Ms. Pranali Kadam, Ms. Shreyashi Srivastava, Mr.
Siddhant Vyas, Ms. Pavitra Pottala and Mr. Soham Bhosale.

This newsletter is special and memorable for all of us considering that even during this
pandemic situation and the challenges we faced in form of lack of physical communication
between us, still, our resolve and dedication resulted in the timely release of the newsletter as
decided. We are utterly grateful and thankful to everyone who has been a part of this initiative
in any form. Hopefully you will enjoy reading it and keep supporting and encouraging us in the
near future.

Thank You.
Enjoy Reading and Keep Growing!
Ms. Neha Tripathi and Ms. Soumya Rajsingh,
Faculties In-charge, Comparative Law Newsletter
Student Team: Ms. Soumya Thakur, Ms. Nikita Mohapatra, Ms. Chetna Shrivastava, Mr.
Abhishek Singh, Mr. Husain Attar, Mr. Devansh Kathuria, Mr. Anubhav Mishra, Mr. Anuj Agarwal,
Mr. Sulabh Gupta, Mr. Rohan Kapoor, Mr. Pranay Bhattacharya, Mr. Abhijeet Mittal, Mr. Indronil
Chaudhary, Ms. Pranshi Gaur, Ms. Pranali Kadam, Ms. Shreyashi Srivastava, Mr. Siddhant Vyas,
Ms. Pavitra Pottala and Mr. Soham Bhosale.

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ARTICLES
The first legislation was the Representation of People
Act, 1918, which allowed women to vote at the age of
A Salute to the Struggle for Women’s 30 with some property and educational qualifications.
Suffrage However, it was not at par with men’s suffrage as a
man could vote at the age of 21 without any such
Mr. Aishvary Vikram, Advocate, restriction. In 1928, the Parliament passed another
Ms. Neha Tripathi, Assistant Professor of Law, MNLU, legislation, namely the Representation of People
Aurangabad (Equal Franchise) Act 1928 which gave women equal
suffrage as of men. John Stuart Mill, who is one of
The Women’s Equality Day is celebrated in the the finest jurists of all times, during his lifetime
United States on 26th August since 1973. This date advocated women’s suffrage, and ultimately his
marks the implementation of the 19th amendment to desire was realised after 47 years from his death in
the US Constitution. It is this amendment which 1873.
recognised the voting rights of women. As this date is
due in August, a small reference to the history of the
Likewise, in the United States of America, the
struggle for women’s suffrage in various countries is
revolutionary 1776 Declaration of Independence, an
inevitable. It is relevant to point out that several
outcome of the American’s struggle against the
chronicles in the history of humankind capture the
colonial rule of Great Britain, proclaimed that ‘all men
struggle for justice and equality. It was the age of
are created equal’. No such declaration was made
enlightenment and renaissance in the 17th and 18th
for women. Before the advent of the 19th
century, which redefined our approach for self-
amendment in the year 1920 to the US Constitution,
determination. During this period, humanity retrieved
there was no uniformity in women’s suffrage. In many
their inherent rights and effectuated equality before
states, such voting right was limited to school or
the law. Social, political, and economic justice was
municipal elections and had specific property and
considered fundamental to human existence.
educational qualification. The 19th amendment
Discrimination based on status, race, political
declares that “the right of citizens of the United
affiliation, and creed was questioned and defaced.
States to vote shall not be denied or abridged by the
However, no matter how much mettlesome and
United States or by any State on account of sex”.
audacious these struggles may look at the first blush,
This amendment allowed more than 8 million women
most of them ignored gender justice. These
to step out of their houses and step in deciding the
struggles, although for a good cause, seems to have
political faith of their own country in the presidential
inherently subdued the contribution of women.
election of 1920.

For instance, even the Magna Carta in the year

In France, the 1789 Declaration of the Rights of Man
1215, much before the era of enlightenment and
and of the Citizen, born out of the French Revolution
renaissance, failed to recognise gender equality.
and inspired by the American Revolution, proclaimed
Interestingly, it only acknowledged the rights of “all
that “men are born and remain free and equal in
free men of the kingdom”, possibly because a
rights”. This political bias in favour of men was
woman for centuries was considered a chattel or
criticised and mimicked by the then French activist
property of a man. In the United Kingdom, women
Olympe de Gouges, who in 1791 charted the
were denied voting rights for a prolonged period.
Declaration of the Rights of Woman and the Female
After half a century of struggle and protest, it was
Citizen pointing out the rights of women. This
only in the year 1918 and 1928 that the laws
Declaration is still considered one of the most
sanctioned the women’s suffrage.
significant milestones in the history of gender justice.
However, back then, as a result of her writings, she
was convicted of treason and executed.

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In France, after several protests and political wherein Article 7 mandated elimination of
movements, the women’s suffrage became a reality discrimination against women in exercise of their
only in 1944. It seems to be quite strange that the voting rights. Interestingly, there is one country
country which gifted the Statue of Liberty, a replica of wherein there is no voting rights including no voting
the Roman goddess, denied equal voting rights to rights of women, that is the Vatican City. Wherein the
women till 1944. Pope acts as the head of the State and is elected by
the College of Cardinals. On a concluding note, the
next time, when some of us enjoy our election day as
Similarly, various other countries such as Brazil
a holiday, we must remember and acknowledge the
allowed women to vote in 1932, Turkey recognised it
historical struggle of women to gain this right, and
in 1934, Japan permitted it in 1945, Greece
must cast our vote despite all the odds.
recognised it in 1952, China and Mexico sanctioned
it in 1953, Egypt allowed it in 1956, and Switzerland
in 1971. In all these countries, women struggled and
protested to gain fundamental political equality in the
form of right to vote.
Fortunately, with India’s independence, the Legal Language and Gender Inclusion
Constituent Assembly recognised the rights of
women while drafting the Constitution. The preamble
of our Constitution envisaged equality of status and Ms. Soumya Rajsingh, Assistant Professor of Law, MNLU,
Aurangabad
opportunity, and justice, social, economic, and
political. Article 15 of the Constitution specifically
LESLIE M. ROSE
prohibits discrimination based on sex. Article 15(3)
The law lives through language and we must be
further empowers the State to make special
very careful about the language we use.
provisions for women and children. Article 39(1) of
the Directive Principles of State Policy under the
Constitution casts a duty on the State to treat men
and women equally while framing policies. In the Gender is a socially constructed characteristic.
context of voting rights, Article 326 grants universal Gender neutrality seeks to avoid gender bias while
suffrage to Indian citizens above the age of 21. gender inclusion attempts to consider every
gender. Inclusion can only be possible when there
will be the complete eradication of the biasness. This
With time the society has progressed, now in most
can be said that both the concepts work in the same
democratic countries right to political equality is a
direction to strive for equality in society. Language
reality, at least under law. Most states now allow
has played a very important role in the evolution of
women to contest and vote in the elections. Few
laws through civilisations. Language is a social
countries that have recently allowed women to vote
phenomenon and through language social
are Saudi Arabia in 2015 and Afghanistan in 2009.
institutions including legal one are established.
Nevertheless, in certain countries, due to
Linguistic knowledge can facilitate our understanding
conservative social restrictions, polling booths far
of the substance of the law. The area where
away from the place of residence, violence at polling
knowledge of language and linguistics have made
booths, illiteracy, and unawareness, the true extent
greatest impact in legal interpretation because it
of women voting rights are not yet unleashed.
eventually results in the entitlement of the
Despite all the odds, women still take the effort to
belongingness of different stakeholders. The relation
cast their vote. In 1979, the United Nations passed
of law and language, with respect to gender
the Convention on the Elimination of All Forms of
representation is essential, as it reflects the notion of
Discrimination against Women,
equal acknowledgment.

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Many a time we have encountered legislations that Talking about states initiative, there are instruments
use masculine nouns and pronouns to refer to like The Dictionary of Occupational Titles, made
subject(s) whose gender is unclear or variable, or to available on-line by the U.S. Department of Labour,
groups that contain people who are not actually men. provides many examples of job titles free from
For example, the U.S. Declaration of Independence gender stereotyping, including “fisher” (fisherman),
states that “All men are created equal.” Generations “worker” (workman), “appliance repairer” (repairman),
of Americans have been taught that in this context. and “salesperson” (salesman). Canadian cabinet
This style of writing of any law is not typical to approved the Federal Plan for Gender Equality,
Americans only; rather this problem is more of a presented to the Fourth United Nations World
universal character. We often find these types of Conference on Women in 1995 which has given
linguistic expression in the Indian statute as well, considerable importance to change in gender-neutral
where the expectation is to derive an implied legal language. Many other countries also have given
understanding; meaning thereby the word “men” importance to developing a gender-neutral legal
should be read as including men, women, and the language.
other gender. Other common instances of gendered
language include words that assume connections
between jobs or roles and gender (like “policeman”) Talking about India, this ‘thought’ of facilitating a
and language conventions that differ depending on gender-neutral legal writing has not been
the gender of the person being discussed (like using institutionalised yet. Indian legal framework, a few
titles that indicate a person’s marital status). This decades back was more concentrated on gender-
type of expression raises a question on the legal specific laws, like legislation on domestic violence or
status of the employee of the other gender. dowry prohibition or rape to give protection to one
section of the society. With the pace of time, when
the need was felt, gender-neutral laws are being
The reality is in legal writing; masculine language has advocated. What has not been considered popularly
traditionally been used to refer to people regardless till now is, to facilitate the gender neutral legal
of their gender. language, to achieve gender inclusion. The major
The contemporary world is on the way to create a legal system of the worldwide the US, Canada along
gender inclusive legal framework in this respect. with India has accepted the status of other gender
Though the critique to gender-neutral legal language apart from the traditional understanding of the same.
consider the whole issue to be a trifling issue but Some have been achieved by its courts and some
there have been many significant efforts to overcome though rewriting the existing laws, but the reality is
this to facilitate a more gender-inclusive legal now, the notion of Gender is not the same which is
framework. The most important fact related to this is, traditionally being understood. Hence, the moot
these efforts are not merely social or theoretical question is, “In order to build a gender-inclusive legal
rather institutional. Starting from the international framework, what is the need?” Only to make laws as
organisation like The United Nations to regional a tool for protecting a section’s right against the
organisation like the European Union time and again popular section of the society or changes the way
facilitated the gender neutral legal writings. The and the tool for writing the laws i.e. language to build
United Nations have issued guidelines to use a gender neutral system. What is more effective for
gender-neutral language in the affairs of the the acknowledgment of their socio legal identity?
organisation. On the other hand the European
Parliament in the year 2008 have adopted
multilingual guidelines on gender-neutral language
as one of the first international organisations in taking
initiative in this area.

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Hence, it is important to make sure women don't fall

DRAWING A LINE BETWEEN INCARCERATION in as the victims of substance abuse and trauma as
AND ABUSE: UNINHABITABLE CONDITIONS OF an aggravated impact of their background on them.
WOMEN IN DETENTION Interventions within women’s prisons must be
tailored to ensure adequate safety measures must be
adapted to make sure that they address distinctive
Mr. Pranay Bhattacharya, 4th Year Law, Student,
MNLU, Aurangabad
problems suffered by women, address the underlying
causes and keep them safe from the offending
“It is not merely a question of women receiving equal behavior of inmates.
treatment to men; in the prison system equality is Taking the account, the figures reflecting prison
everywhere conflated with uniformity; women are abuse the UK government has considered trauma
treated as if they are men.” informed interventions crucial with an aim to prevent
Women in Prison: A Thematic Review, UK, 1997. the re-triggering of trauma which could lead to further
violent or destructive behavior such as self-harm or
The prison system across jurisdictions and countries, violence among prison staff or other prison inmates.
particularly India often hide violence and depravity
Analyzing the above problems in the prison
against women behind the bars. Incarceration of
administration system across the world the
women prisoners are being neglected due to
conditions of female prisoners should be assessed in
uninhabitable conditions and victimization due to
a trauma informed manner tailored to their respective
unstable conditions, abuse by inmates, mental and
backgrounds so that their abuse does not lead to
health problems amongst others. In this view, the
further traumatisation among prisoners and the staff.
write-up will focus on the incarceration and abuse
faced by women prisoners and particularly To resolve the above problems, there are various
eliminating any possible abuse they might face International Rules and Standards governing the
behind the bars. Rights of Prisoners such as the International
Prison conditions and the period of sentence tend to Covenant on Civil and Political Rights, Standard
have more mental impact on women than men. Minimum Rules for treatment of Prisoners
Studies have shown that women are more likely to
(Standard Minimum Rules, Convention Against
suffer from anxiety, depression, drug problems and
Torture and Other Cruel, Inhuman or Degrading
suicide attempts in prison. After a recent case of
Treatment or Punishment are some of the major
Sally Challen in the UK a devastating impact of
international guidelines determining the general
coercive relationships and the lack of legal protection
rights as well as inherent right to be treated with
for victims of domestic abuse who are driven to
dignity. But, in contrast, the Indian domestic laws and
offend were revealed. Almost 60% of women
regulations of incarceration such as Indian Penal
supervised in the community or in custody, who have
Code, 1860; Prison Act, 1900; Identification of
an assessment, have experienced domestic abuse;
Prisoners Act, 1920 are flawed with absence of
the true figure is likely to be much higher. Most
exclusive protection and intervention mechanisms for
women in prison are there for non-violent offences.
protecting the rights of women prisoners behind bars.
Therefore, the Prison Reforms Trust (an Non Profit
Organisation working in UK) propose a new statutory
However, the Model Prison Manual prepared by
defence for those whose offences are driven by their
Bureau of Police Research and Development
experience of domestic abuse, adapted from the
Ministry of Home Affairs Government of India lays
defence in Section 45 of the Modern Slavery Act
down a progressive guideline for jail authorities under
2015 for victims of human trafficking or modern
Chapter XXIV (Women Prisoners), which states that
slavery who are coerced into offending. One of the
“women offenders shall, as far as possible, be
most important aspects of prison reforms should be a
confined in separate institutions specially meant for
reduction in women prisoners who have been
them.
coerced into offending.

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Wherever such arrangements are not possible they delinquent peers. Punishment in school, parental
shall be kept in separate annexes of prisons with discipline, and peer interaction can be considered as
proper arrangements.” Further, women prisoners initial phase where a male is more possibly to
shall be protected against all exploitation and their interact with delinquency as a outcome of having less
special needs to be meted out. Therefore, the resources for non-delinquent coping and on the other
document’s implementation in keeping its objectives hand females are more likely to utilize social support
alive by states will go a long way in improving the when confronted by stress and such reason for mens
prison condition for women in India. rea as comparison to men. The male and female
The existing enclosures for women should be may show similar reaction to a particular strain but
renovated in a manner to ensure all the requisite the society form the birth starts treating a male with
facilities such as segregation, protection, child-birth strong control over emotions and hence it increases
and family care, health care, training and the burden on men where they cannot share their
rehabilitation, and most importantly interventions that strain with others due to societal pressure.
distinguish women coerced into offences and their
subsequent removal from prisons.
Before posting a story on social platform it is
pertinent to understand the background story and its
future consequences. Family strain, peer strain,
neighborhood strain, school strain and mental-
physical victimization are considered as prominent
strain which leads an individual to commit crime to
GENERAL STRAIN THEORY: DOES VICTIM match the desire as presented before by the society.
HAS A GENDER? As per traditional strain theory explains crime as a
response and in consonance raised because of
frustrations and strain form inability to achieve
Mr. Anubhav Mishra, 4th Year Law, Student,
expected economic goals. As the time changed the
MNLU, Aurangabad
goal and outcomes are not just limited to income pr
“If you act like a victim, you are likely to be treated as middle class status. The GST also includes goal
one” blockage and inability to achieve valued goals such
-PAULO COELHO as respect and masculine status, autonomy and
desire for excitement.
The legal person is considered as genderless include
both male and female and under penal laws same Various researches have produced the evidence that
punishment is awarded on the basis of crime during the time of distress and strain, it appears that
committed irrespective of gender. Contrary to the females are more susceptible to interpersonal
approach the General strain theory (hereafter GST) stressors whereas males show vulnerability to peer
has explained the relation between crime and strain and victimization. The Indian system is
delinquency and accepted the thought that the crime suffering from the modern cause behinds GST such
is influenced by a negative thought. Human mind is as trial by media and social media platforms which
considered as source for emergence of thought and has created an atmosphere in the country that
every mind is unique and thereafter reacts differently diverted the main issues and objective of Feminism
even in same situation. Potential emotion may and movement to create social stigma where both
include disappointment, depression, guilt, fear and genders are considered and treated equally and
among all anger is more influential. have similar social, economical and legally on the
Criminologists’ believes that strain lead to crime has other hand Pseudo feminist desires to fabricate a
more impact on male in countries like India as world regime by just women which later become a
females have more social support, are potentially kind of strain and reason for distress.
monitored by family and are less associated with

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Recently the most burning issue of Boys locker room Job Rights and Equal Opportunities
example where social media ruined the life of a
The discrimination faced by trans people has
young male just because of fake rumors related by
remained as one of the major concern for human
opposite gender and leads him to commit suicide.
rights activists in India. The stigma that they face
The intention behind citing such example is just to
leads to lack of opportunities and a form of exclusion
show how a male is also as vulnerable as its
from benefits and acceptance. Also, wage inequality,
counterpart and without any investigation and
on-the-job discrimination, hiring biases lack of legal
evidence how society by following the trend creates
resources,inability to access documents and benefits
such strain so that it leads to such drastic step.
which are denied always create a wall between trans
The changing dimensions of societal need are people and employment opportunities. They also
changing and similarly the social behavior. Reaching remain to be the marginalised sections of the society
to conclusion after adequate proof and calling “all which is still one of the greatest challenges. Further,
men are same” is not a sign of progressive society the Transgender Bill which is pending has also not
but contrary to that leads to destruction. The General acknowledged the fact that this community is
Strain Theory is based on the assumption that with still socially and economically backward and the
changing desires the behavior changes but passing rights should be provided in that manner.
verdict against the gender for of act committed by Apart from this, the right to health, work, love, prayer,
individual may push in that peer where one can more education and to stay connected with others, is the
possibly interact with delinquency and hence GST prerogative of every individual without attached terms
leads to the question that who should be blamed for and conditions. Therefore, equal access to benefits
the commission of delinquent act the society or peer at the workplace should be promoted for them to live
or those who are blindly passes the verdict without a productive and healthy life.
knowing the strain?
Right to get Married: An anomaly
As far as the 'Marriage Project' is concerned, it
may garner both support and criticism from the queer
QUEER FREEDOM: THE ROAD AHEAD OF community.
However, considering the fact that Indian societyis
SECTION 377 DECRIMINALISATION
completely family-oriented, one progressive step in
mainstreaming queer rights is legalising same-sex
Mr. Husain Attar, 4th Year Law, Student, MNLU, Aurangabad marriage. Across the world, Thirty countries and
Mr. Abhishek Singh, 4th Year Law, Student, MNLU, Aurangabad territories including Taiwan, South Africa, Portugal
and the UK, have enacted national legislation
Introduction allowing homosexual people to marry.
Two years ago, a five-member Bench of the Though, Section 377 has been decriminalised, there
Supreme Court ruled that Section 377 of the Indian is no law in India which legally recognises a marriage
Penal Code (IPC), violated India’s constitutional between a couple of same-sex. Laws in India are yet
morality. The landmark judgement reversed an to recognise the same set of rights and
earlier ruling that had criminalized the community responsibilities for married homosexual couples that
and finally a discussion on Queer Freedom was they do for heterosexual married couples. Moreover,
alive. Justice Indu Malhotra, one of the five judges In India, two consenting adults of any sexuality or
who read out four concurrent verdicts, said that the sexual orientation can have a ‘social marriage; but
society owes the LGBTQ+ community an apology for there are no legal safeguards of their rights. Also,
the historical wrongs perpetrated against it. It has homosexual couples in India do not have any legal
been two years, since the judgement has been rights such as registration of marriage, inheritance,
pronounced and it can be rightly said that “Queer succession, and adoption,
freedom” is still a myth.

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CASE-COMMENT

maintenance of the spouse and children, and

guardianship among others. Right to choose a
partner is a fundamental right, which was recognised STATE v. SARVJEET SINGH
by the Supreme Court of India in Shakti Vahini v.
Mr. Rohan Kapoor, 4th Year Law, Student,
Union of India and others (2018).There is, therefore,
MNLU, Aurangabad
no reason for not extending this right to marry to the
homosexual couples apart from blind prejudice and
lack of understanding of the homosexual community. Complainant: Ms. Jasleen Kaur
Therefore,it is also a failure on the part of the Accused: Sarvjeet Singh
legislature that they have not brought amendments to Competitive Court: Metropolitan Magistrate (Mahila
the existing laws related to marriage, adoption, Court) Tis Hazari Courts, New Delhi
inheritance, etc. to give equal rights and status to CNR Number: DLWT02-010257-2015
LGBTQ community people. Filing Number: 69993/2015

Judiciary: Filling the Vacuum Introduction

The Kerala High Court has accepted a hearing of a “Gender Inclusive Framework”; a framework where
case petitioned by Mr. Nikesh Usha Pushkaran and all the genders should be treated equally. The above
Mr. Sonu MS in January 2020. They got married in a phrase means that all the genders should be treated
Kerala temple in July 2018 and have been living equally, but there are some instances where we can
together since, but they feel discriminated against as clearly observe that a “specific gender” is given due
they don’t have the same legal rights as other coverage by the society. The following case is an
couples do. They also feel they lack social illustration that how the society passed their own
acceptance. Though the text of the Special Marriage decision based upon the gender of the victim and the
Act, 1954 does not exclude homosexual unions from accused even before the beginning of the
its ambit expressly, Section 4 and Schedules 2-4 to proceedings.
the Act carry a heterosexual undertone in its
language as it shows marriage as an affair between Facts of the Case:
a male and a female or between bride and
bridegroom.The HC has asked Centre and state On 23.08.2015, near Aggarwal Chowk, Tilak Nagar,
government to respond to the petition, and the Delhi, the accused came on a bike came from the
couple now awaits a hearing. If the writ petition is wrong side when the traffic light was red and his bike
successful, it will be a pathbreaking victory for a was about to hit the complainant and the complainant
community which continues to face discrimination, argued, to which accused started abusing the
humiliation, psychological damage, mental torture complainant in filthy language and passed comments
and prejudice from the society. upon the complainant and mumbled something and
went from there.
Conclusion
In order to remove the social stigma from the society It is further alleged that in the meantime, complainant
it is important to begin with small steps by changing took one picture of accused and one picture of
the environment around ourselves and accepting the accused with his bike along with its number plate.
LGBTQ community as a part of our society because When accused saw complainant clicking his picture,
a law made for them will only be successful if it is he criminally intimidated the complainant. It is further
appreciated by each and every individual in the alleged that complainant made a call on 100 number
society and not just for the sake of giving rights to and gave her written statement to the police when
them. But at present, we need to ask ourselves if we they came on spot and present case was lodged
are ready and welcoming enough to accept them and against the accused.
their freedom as a part of our community.

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Issues Raised: Indisputably, a conviction on the sole testimony

Whether the accused is guilty under Section of the prosecutrix[1] can be sustained, however,
354A[1] of IPC? in the present case, the complainant has made
Whether the accused should be punished material improvements in her statements.
according to Section 506[2] and Section 509[3] of In view of the same, the testimony of the
IPC? complainant is not trustworthy and casts a
serious doubt on the case of the prosecution.
Arguments by the Prosecution: Moreover, the place of incident was a public road
and expected to be crowded at the time of
The State has contended that all prosecution
incident and no public witnesses was examined.
witnesses have supported the case of the
Thus, non-examination of eye witnesses, who
prosecution and therefore the accused persons
could have supported the case of the
deserve to be convicted and sentenced as per law.
prosecution, casts a serious doubt on the case of
the prosecution. Therefore, benefit of doubt[2]
Arguments by Counsel for the Accused: has to be extended to the accused.
The council argued that the testimony of
complainant cannot be relied upon completely as
Analysis:
the incident happened in the middle of the road
were many people had gathered and witnessed Despite winning, Sarvjeet Singh (accused)
the incident, however, no one other than underwent severe stigma and mental. Prior to the
complainant was cited in the present case. judgement of the Hon’ble Court, one of the big media
It is further argued that the present case has houses gave Sarvjeet Singh the Title “Delhi ka
been filed just ‘to gain publicity on social media’ Darinda”. He lost several job opportunities because
by the complainant as on the same day of he had become famous and could not travel outside
incident instead of talking to police and helping in the city without police's permission. Meanwhile, the
investigation, complainant updated photograph complainant was rewarded by former Delhi
on her Facebook page and was praised for her commissioner for her bravery. She was so much
action. engaged in her life that she never got time to show
It is further argued that complainant has not up once on any trial.After Five years of financial and
provided sufficient proves to prove her mental breakdown, now it has been proved that the
allegations against the accused persons. Hence, accused Sarvjeet Singh is not “Delhi ka Darinda”.
the counsel for the accused prayed that benefit of
doubt should be extended to the accused and he
be acquitted. 1. STATE v. SARVJEET SINGH
2. Sexual harassment and punishment for sexual harassment.
3. Punishment for criminal intimidation. If threat be to cause
Judgement: death or grievous hurt, etc.
4. Word, gesture or act intended to insult the modesty of a
It is pertinent to mention herein that there are woman.
various contradictions and improvements in the 5. Recording of confessions and statements.
version of the complainant, her additional 6. A female prosecutor
7. The state of accepting something/someone as honest or
statement given to the police, her statement U/s
deserving of trust even though there are doubts
164 Cr.P.C[1]. and her deposition before the
court. Moreover, in her examination-in-chief she
has qualified her above stated statement with the
fact that the accused made the lewd statements
while making an obscene gesture.

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The decision, though laudable is a far cry from the

LEGAL SEX CHANGE PROCEDURES right of self-identification of gender which lays down
AND THE REALISATION OF the groundwork for a potential gender inclusive
SELF IDENTIFICATION framework in any legal system. Relying on the
foundation of personal autonomy, the right to self-
identification believes in the freedom to make
Ms. Nikita Mohapatra, 4th Year Law, Student, MNLU, Aurangabad decisions for one self, by oneself and about oneself.
Mr. Indronil Choudhry, 3rd Year Law, Student, MNLU, Aurangabad
It builds a support of human dignity and clarity for
gender non-conforming people who have been at the
On July 8, 2020, in the matter of Jones David receiving end of historical oppression and hostility.
Hollister, the Oregon Court of Appeals ruled that non-
binary people across the State of Oregon will be able Article 22 of UDHR mentions personal right of “free
to secure the correct legal gender designation from development of his personality”. The UN Human
their local circuit court, setting a new precedent for Rights Committee also observed that “privacy” under
transgender and non-binary rights in the state. Jones Art. 17 of the International Covenant on Civil and
David Hollister, a non-binary person living in Lane Political Rights (ICCPR), includes “the sphere of a
County, Oregon attempted to change gender person’s life in which he or she can freely express his
designation from female to non-binary legally but or her identity”. A person’s gender if anything, is an
their request was denied by the Lane County Circuit indispensable aspect of the “identity” that people
Court. Hollister appealed the Circuit Court’s decision consider in social construct as well as an important
at the Oregon Court of Appeals. Following which, the fragment of one’s inter personal individuality. Hence,
Court affirmed a change in the gender designation as it is the individual—not the government—who has
“non-binary”. authority to determine the individual’s religious
identity, political affiliation, and sexual orientation.
The right to self-determination provides a firm basis
The fight for non-binary status started in 2016 when for the right to gender recognition.
Oregon resident Jamie Shupe became the first
person in the US to be recognised as legally non-
To say that individuals have a right to determine their
binary. As it was the case, Shupe did not identify with
legal gender is not to say that biological aspects of
the conventional gender constructs, i.e., he was
sex are completely irrelevant. However, to the extent
neither male nor female. In June 2016, Shupe
that the government has an interest in categorizing
petitioned at Oregon Court to legally change his sex
individuals based on biological aspects of sex, it
designation to non-binary, which was later affirmed
must do so in a way that comports with the
by Judge Amy Holmes.
proportionality principle that undergirds human rights
In the recent decision, the petitioner filed the
law.[i] For this purpose, it is of paramount importance
application for legal sex change pursuant to Oregon
to introduce legal framework which are devoid of
Revised Statutes (ORS) 33.460. The Court in this
procedural or medical preconditions. The Office of
matter dwelled upon statutory construction of the
UN High Commissioner for Human Rights in 2015
usage of “sex” in ORS 33.460, to hold that the word
recommended “issuing legal identity documents,
doesn’t thrive within the four walls of binary gender
upon request, that reflect preferred gender,
constructive. The Court adopted a liberal approach in
eliminating abusive preconditions, such as
interpreting the provision to manoeuvring the
sterilization, forced treatment and divorce.” Similarly,
meaning of “gender identity” to expand the contours
the World Health Organisation in its 2015 report
of “sex” since “affirming to gender identity” is the
emphasized to “take all necessary legislative,
basis for legal sex change under ORS 33.460.
administrative, and other measures to fully recognize
each person’s self-defined gender identity, with no
medical requirements or discrimination on any
grounds.”

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Despite the positive efforts, the responses of States It is an existing argument under the universal equal
have been largely disappointing. For example, protection notion and some existing statutory laws
though deep rooted in the Due Process Clause of the that non-binary rights will be realised. Judiciary in
Fourteenth Amendment to the US Constitution, some places has persistently maintained their ethics
Oregon’s law (ORS 33.460) ignores the prominence whilst looking beyond statutory law and existing
of this basic human right by holding surgical and interpretation to settle the qualms of birth assigned
hormonal treatments as a prerequisite to legal sex gender and self-identity.
change. The presence of such legislative and A fundamental right to self-identification is the natural
procedural hurdles, pose hazards to physical and next step of universal legal jurisprudence which
mental health as observed in the November, 2017 would avert courts from certification of any gender
report of the World Professional Association for beyond the individual’s sincerely held beliefs of
Transgender Health. Back home, in India, the gender. The sincerely held belief should be at equal
situation is unfolding with mirrored similarity. Though pedestal since gender, like religion, is a concept that
no particular framework exists for non-binary is intimate and unique to each individual. As rightly
persons, the 2014 judgment of NALSA v. Union of pointed out by E. E. Cummings “It takes courage to
India, noted that the right to self-determination an grow up and become who you really are.” So, isn’t
inherent part of Article 21 (Right to life) of that courage worth protecting?
transgender, delineating it as forming the groundwork
of personal autonomy and self-expression. Though,
the complete realisation of this dictum has been met
with legislative and implementation contradictions. 1. Moshe Cohen-Eliya & Iddo Porat, Proportionality and
The Transgender Persons (Protection of Rights) Act, Constitutional Culture,59 American Journal of Comparative
2019 accompanied by its draft rules have implicitly Law 463 (2011).

revoked this right. The issuance of certificate of

identity for transgender is conditional upon
undergoing sex reassignment surgery (SRS) and the
procedures prescribed therein to be carried out under
the executive scrutiny.
The prerequisites of SRS and psychological
evaluation for gender identification are essentially at
crossroads with the complete realisation of the right
to self-determination of a transgender.

The only positive node developing, in stark contrast

to this regressive framework, would be the steps, the
Government of Canada has undertaken to expunge
the barriers by eliminating the exercise of executive
leeway and scrutiny. The procedure relies on
statutory declaration and a practising physician’s
letter authenticating the reasons for change of sex
designation, thereby leading to the realisation of the
right to self-determination which is inherent to an
individual’s dignity and worth.

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LEGISLATIVE COMMENT

The bill lays down the five purposes for which

surrogacy is permitted, i.e., gestational surrogacy
SURROGACY (REGULATION) BILL, 2020 (surrogate mother will not provide the gametes),
altruistic, any medical condition and banning the
Mr. Siddhant Vyas, 3rd Year Law, Student, commercial form of surrogacy. The bill only allows
MNLU, Aurangabad married Indian citizens between the ages of 23 and
26 to 50 and 55, respectively for females and males,
who do not have a biological, adopted child or a child
Introduction through surrogacy. This potentially excludes
foreigners, single people, and homosexual couples
The practice of surrogacy has always been a
from taking up a surrogate child. The bill also lays
debated topic in India. The renting/borrowing of a
down the eligibility for women who want to become
womb often open us the debate about morality and
surrogate mothers, restricting them to be close
the legal implications which surround the practice of
relatives of the intending couples. It only allows
women profiteering from their bodies. It can be
married, willing women between the age of 25-35
argued that the practice of surrogacy empowers
years, having a child of their own to become
women and make them independent and self-
surrogate mothers. It also states that the surrogate
sufficient, however as the case may be the practice
child will be entitled to all the rights available to a
of surrogacy often gets exploited, for more than the
natural child under any law for the time being in
object it seeks to achieve. Buying and selling of
force. (Sections 4-10)
babies for prostitution is often reported, it is also
The bill provides for ‘registration of surrogacy’ clinics
sometimes the case where the intending parents
by appropriate authorities and its related procedures,
abandon the new-borns and the surrogate mothers
‘registration of certificates’ valid for three years
are left on their own, further, the women often take to
subject to renewal, and ‘cancellation or suspension
becoming surrogate mother for a number of times
of registration,’ etc. (Sections 11-14) The bill deals
even with deteriorating health. In the year 2002, India
with National and State Boards, its members, the
legalised commercial surrogacy, making India live up
function of the board, etc., (Sections 15-32) It
to its title of ‘the surrogacy capital of the world,’ but
provides for who is an appropriate authority and its
the above-mentioned problems continued and
functions. (Sections 33-35)
therefore, in its 228th report, the Law Commission of
The bill also states that it penalises any person
India recommended prohibition of commercial
imprisonment up to 10 years and fine up to 10 lakh
surrogacy and allowing only altruistic surrogacy. The
for advertising or undertaking commercial surrogacy
Surrogacy (Regulation) Bill, was proposed for the
in any manner, disowning or exploiting the surrogate
first time in the 2016, but it lapsed. The Surrogacy
child or mother, selling or importing human embryo
(Regulation) Bill, 2019, was reintroduced and passed
or gametes for surrogacy purpose and conducting
in the Lok Sabha and was referred to the Select
sex selection in any form for surrogacy. (Sections
Committee of Rajya Sabha. the latest bill includes all
36-43)
the recommendations made by the committee, and
has been approved as The Surrogacy (Regulation)
Bill, 2020, by the cabinet. The flaws of the Bill
The object that the bill seeks to achieve is to protect
the surrogating women from any form of exploitation
What does the bill provide?
or abandonment by the intending Indian or foreign
The bill provides a distinction between ‘altruistic’ and
couple and curb the practice of buying and selling of
‘commercial’ surrogacy. It also provides for definition
children for prostitution and human trafficking.
of ‘intending couple’ (medically certified infertile) and
However, putting down strict eligibility for the
‘intending woman’ (who is a widow or a divorcee,
intending couples and the mothers, and putting a
between the age of 35-45), among other definitions.
blanket ban on the commercial surrogacy, will do
(Section 2)
more harm than good.
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Article 21 enshrines the principles of Right to Life, Conclusion

Personal Liberty, and Right to Livelihood, however, a
blanket ban on the commercial form of Surrogacy is Regulation of Surrogacy is India, was a much
contradictory to this principle. This right stands needed step to save the surrogate mothers from any
violated by the bill as it doesn’t leave any room for form of exploitation that they may face due to
needy women to achieve some financial abandonment of the child by the intending parents,
independence or stability for themselves, the poor the deteriorating health due to repetitive pregnancies,
women of the country who often depend on this and new-borns becoming the victims of human
practice for some form of financial assistance will trafficking, and other issues. However, any law or
face injustice. Further, it is also in violation of policy must maintain a balance between regulations
woman’s right to trade and profession under Article and rights, and it must make way to provide well-
19(1)(g). being to all. The Surrogacy (Regulation) Bill, 2020,
Further, the eligibility for the intending couples, also though optimistic, fails to strike that balance, with its
puts a question on the right to reproductive eligibility criteria for the intending couples and the
autonomy, which includes right to procreation and blanket ban of commercial surrogacy. It snatches
parenthood. Therefore, the criteria, denies away the right of women to achieve financial
reproductive choices to LGTB, single persons and independence and control over her body. It
older couples. The bill also limits the altruistic undermines the sexual autonomy, and right to
surrogacy to close relatives, therefore it interferes choose of the people.
with a woman’s right to control her body, fertility and
motherhood choices, as a woman who wishes to
help a couple, cannot do so if they are not close
relatives.
The bill differentiates between single persons,
homosexuals, people belong to a specific age group
and the “intending couple” without showing any TRANSGENDER PERSON (PROTECTION OF
intelligible differentia between the two, therefore the RIGHTS) ACT, 2019, END OF STRUGGLE FOR
bill may appear to arbitrary in nature and wouldn’t RESPECT AND DIGNITY: A MYTH
stand the test laid down under Article 14.
Ms. Chetna Shrivastava, 4th Year Law, Student, MNLU, Aurangabad
Mr. Abhijeet Mittal, 3rd Year Law, Student, MNLU, Aurangabad
The Global Practice
Introduction
In the United States of America and Argentina, There is a segment of our general public containing
surrogacy requests are decided by independent people; regularly observed moving on streets, asking
surrogacy committees. In the United Kingdom, for contributions and at times showing up uninvited to
Denmark, South Africa, Canada and Greece, only marriages and birth occasions, showering blessings
altruistic surrogacy is allowed. Commercial surrogacy of good wellbeing and life span in a trade for cash. A
is legally allowed in the countries like Russia, similar network, which is generally dreaded for its
Ukraine, and Thailand. In France, Germany, Spain, 'influence' to welcome mishap on articulation of a
Sweden, Italy and Iceland, surrogacy is banned in all revile, sadly, is itself, subject to manhandling, misuse
forms. and expulsion. People of this network, named
variedly as Eunuchs, Hijras, Aravani, Jogappas, and
so forth., in various pieces of our nation, represent
gravely underestimated units of our general public; to
a great extent disliked, neglected and in a few cases
subject to occurrences of outrageous brutality,
torment and destitution.

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At yet, another end of the spectrum is a group,

ANALYSIS
involving people; who don't carefully adjust with the
larger part characterized, "male" and "female" sexual FUTILE RIGHT OF SELF-IDENTIFICATION OF
orientations and gender roles. This gathering GENDER
involves people who may dress and carry on In the case of NALSA v. Union of India, the Hon’ble
contrastingly to their organically doled out sexual Supreme Court held that the right of Self-
orientations or gender attributes and in specific identification of gender is protected under the
cases, the individuals who may have experienced purview of Article 19 1 (a) and 21 of the Indian
difficult surgical operations to coordinate their outer Constitution, which deals with Freedom of speech
appearances to their recognitions and convictions of and expression and right to life and personal liberty,
self. which includes right to human dignity, respectively.
The circumstance of this gathering, as well, is the The court in NALSA judgement opined that
same. However, extensively disjunct, a string of constitutional dignity of human rights is something
shared characteristic ties these two gatherings; right which ensures the normative unity of human rights.
off the bat, under the name/title, "Transsexual" and The section 4 of Transgender Person Act, 2019
besides, sadly, under the intermittent occasions of provides the Right of Self-identification, wherein the
scorn, embarrassment, segregation and cultural lack section 5 and 6 of the Act mandates the application
of concern, that such people are exposed to on an to be made before District Magistrate for issuance of
everyday premise. Certificate for gender identity. The Certification of the
Several countries across the world have gender, inter alia, by District Magistrate is the
acknowledged their responsibility towards issues contravention of rights protected under the Indian
related to gender-identity and sexual-orientation. It is Constitution.
largely accepted that the concepts of gender identity Furthermore, section 7 of the Act mandates the
and sexual orientation of an individual are intrinsically submission of certificate of sex change surgery,
intertwined. While the former relates to the inner issued by “Medical Superintendent or Chief Medical
sense of being male, female or transgender or Officer of the medical institution in which that person
transsexual person; the latter connotes an has undergone surgery,” to the District Magistrate for
individual’s enduring physical, romantic and/ or revised certificate. Currently, India has no medical
emotional attraction to another person. rules and regulations regarding the transgender
person health care services, including sex
Article 1 of Universal Declaration of Human Rights, reassignment surgery.
hereinafter referred to as ‘UDHR ‘ states that all
human beings are born free and equal, furthermore
Article 6 of the Declaration read along with Article 16 LACK OF SUPPORTIVE PROVISIONS
of the International Covenant on Civil and Political RELATED TO EMPLOYMENT AND
Rights, hereinafter referred to as ‘ICCPR’ recognize EDUCATION
every individual’s right to life ,it also imposes a The section 9 of the said Act prohibits establishments
responsibility on every state not to deny the said from discriminating the transgender persons in the
right. Article 5 of the UDHR and Article 7 of the matter related to employment, promotions and other
ICCPR provide that nobody will be exposed to issues. The section 13 mandates educational
torment or to pitiless barbaric or corrupting treatment. institutions, funded or recognized by government, to
Further, Article 12 of UDHR and Article 17 of the provide education and opportunities in sports and
ICCPR provide that nobody will be exposed to other activities without any discrimination.
discretionary or unlawful impedance with his privacy, The Act is poles Apart from the NALSA judgement,
family, home or correspondence, and that everybody which advised the government to bring affirmative
has the privilege to assurance of law against such actions for transgender persons.
obstruction or assaults.

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SOCIAL SPOTLIGHT

The court held that ‘the state is obliged to take

measures so as to treat these trans people
PROTECTION OF TRANS RIGHTS: THE NEED
as socially and educationally backward classes of OF THE HOUR
citizens and extend all kinds of reservation in cases
of admission in both educational institutions as well Ms. Pranali Kadam, 3rd Year Law, Student, MNLU, Aurangabad
as for appointment in the public offices’. Ms. Shreyashi Srivastava, 3rd Year Law, Student,
MNLU, Aurangabad
DISPARITY BETWEEN THE PENALTIES FOR “All human beings are born free & equal in
OFFENCES AGAINST TRANSGENDER AND dignity and rights”
CISGENDER (Article 1 of the Universal Declaration of Human
Chapter VIII of the Act deals with offences related to Rights)
forced or bonded labour, wrongful restraint, forced
removal from place of residence or village, harm to
The Covid-19 pandemic has disrupted almost all the
life, safety or health and physical, sexual,
countries in the world. While every government is
economical, verbal or mental abuse. Further, it
striving to fulfil the major concerns, it has almost
penalises above mentioned offences with
turned a blind eye to other minority groups such as
imprisonment not less than 6 months, which can go
the trans community. This community was already
up to 2 years. However, it becomes pertinent to note
struggling for their basic human rights, and their
that rigorous punishments are provided under Indian
situation is further aggravated by the pandemic.
Penal Code, 1860 for the similar offences caused to
Violence faced by the community has increased
cisgender. Whereas, Transgender person Act, 2020
globally. Recently a native El Salvador transgender
provide milder and lighter punishments.
seeking asylum in Guatemala to flee from gender-
Furthermore, the act also doesn’t address the issue
based violence and persecution was killed. Day-to-
of atrocities committed by family member which
day discrimination is a norm for the trans community
compels transgender persons to leave their home.
in Panama due to the implementation of a quarantine
schedule which mandates a segregation between
men and women prescribing alternate days to go
Conclusion
outside.

The act thereby strengthens the long standing stigma

that being cisgender is ordinary, whereas being The plight of transgenders is vastly visible in India.
transgender is an exception. The terra firma reality is The 2011 Census shows that are at least 4,88,000
that the Act doesn’t provide reservation in either transgenders in India. Yet, it is speculated that many
Employment or Education and the disparity in the have not disclosed their identity in fear of stigma,
intensity of punishment given to offenders committing discrimination, and systemic harassment. The
offence against transgender in comparison to community is also prone to social boycott and
cisgender draws transgender out of the mainstream. presently the pandemic has worsened their reach for
Hence, it can be concluded that the act failed to basic healthcare and livelihood support. Although,
secure the constitutional rights of trans community their right to self-determination was affirmed by the
and need some crucial changes. Hon’ble Supreme Court in its judgement, National
Legal Services Authority v. Union of India (AIR 2014
SC 1863), it was not realized in the recently debated
Transgender Persons (Protection of Rights) Act
2019. The gender non-conformity and deprivation of
their right to self-identification has disabled them
from access to essential medical care.

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Lack of trans male and trans female wards in The 11th U.S. Circuit Court of Appeals in Drew
hospitals has led to several harassment cases. The Adams v The School Board of St. Johns County,
community also faces various health challenges like Florida, rejected that on August 7, 2020. It laid down,
HIV and in such times their need for the antiretroviral “A public school may not punish its students for
therapy might not be prioritized. Majority of its gender nonconformity. Neither may a public school
population does not even possess basic harm transgender students by establishing arbitrary,
documentation in the form of Identification card separate rules for their restroom use.” The ruling
(Aadhar), voter ID or ration card. Hence, they remain covers schools in Florida, Georgia and Alabama, and
outside the scope of any social relief schemes could carry the issue to the U.S. Supreme Court.
provided by the government. To sustain themselves, This win reflects a breakthrough for transgender
they are mostly forced into beggary or illicit rights that dig deeper than high school bathroom use.
prostitution due to poverty and lack of education.

The wall of prejudices which prevents the

While India struggles to provide protection to the
transgenders from entering into a society of equal
trans community to in terms of livelihood and social
treatment must be torn down. We should help to
security, the recent U.S. Supreme Court judgement
solve their problems, not escalate them. The
was a glimmer of hope. The June 2020, U.S.
governments should positively refrain from making
Supreme Court ruling in Bostock v Clayton County
any legislation which deprives the trans community of
protected the civil rights of LGBT workers from
their existing human rights. Special efforts must be
discrimination in the workplace and held it as a
taken to prevent any kind of discrimination and
violation of Title VII of the Civil Rights Act of 1964.
violence against the LGBTQ people. The time calls
Before this, it was legal in more than half of the
for protection of the most vulnerable members in this
states to fire or deny benefits to workers who
community namely HIV patients, old and homeless
identified as gay, bisexual, or transgender. Justice
people. To provide medical relief aids, shelter and
Neil Gorsuch opined, “An individual’s homosexuality
other basic necessities is the obligation of not only
or transgender status is not relevant to employment
the government but also the entire society. It will
decisions. That’s because it is impossible to
ensure their access to basic amenities in a dignified
discriminate against a person for being homosexual
manner and help to eradicate the discrimination they
or transgender without discriminating against that
have faced for years.
individual based on sex.”
President Trump had tweeted in July 2017 that the
United States Government would not accept or allow
transgender individuals to serve in the U.S. Military.
The Bostock decision prohibits discrimination against
transgender people in civilian employment, and thus
gives the military a possibility to return to its own pre-
Trump policy of welcoming all personnel regardless
of sex, gender or sexuality.

In 2017, Drew Adams had sued the St. Johns County

School District because he wasn’t allowed to use the
boy’s restroom. His biological gender was female but
he began the transition to male before he enrolled in
high school. Despite this the school district relied on
old documents which listed Adams as a girl, and said
he couldn’t use the boy’s restroom.

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Honour killings self-evidently violate the right to life.

ADULTERY LAW CONCERNING WOMEN
Provisions safeguarding the right to life may be found
SYNONYMOUS TO HONOR KILLING in various international human rights instruments,
including the Universal Declaration on Human Rights
Ms. Pranshi Gaur, 3rd Year Law, Student,
MNLU, Aurangabad (UDHR), the International Covenant on Civil and
Political Rights (ICCPR), the Convention on the
The world is a family indeed, but when it comes to Rights of the Child (CRC), the European Convention
the redressal of the grievances of the world at a large on Human Rights and Fundamental Freedoms
lot of significant issues are left untouched. The (ECHR), the American Convention on Human Rights
Islamic laws, in one issue or other have turned out to (ACHR), and the African Charter on Human and
be gender biased, majorly with respect to issues People’s Rights (ACHPR). Moreover, the right to life
relating to adultery. Adultery is defined globally as in the context of violence against women is
“voluntary sexual intercourse between a married reaffirmed in the Declaration on the Elimination of
person and someone other than that person's current violence against Women and the Inter-American
spouse or partner.” As per the reports of United Convention on Violence against Women.
Nation Commission on Human Rights show that
honour killing have occurred in Bangladesh, Great The law relating to adultery in Jordan is showing no
Britain, Ecusdor, Egypt, India, Israel, Italy, Jordan, sign of progress when compared with the other laws
Pakistan, Morocco, Sweden, Turkey and Uganda. where the number of cases of adultery are on power
with. In India, adultery was an offence until Apex
Court judgment in Joseph Shine v. Union of
Particularly about the adultery laws in Jordan, that India(2018 SCC OnLine SC 1676) but before that
are far more gender-biased than the progressive also, the rate of honor killing was reduced to great
society may even dare to think. According to extent. Such paternalism and gender discrimination
Jordanian law, sleeping with any unmarried member are reflected in the language of Article 340 of the
of the opposite sex is considered adultery which is JPC (Jordan Penal Code). It allows only men to
elaborated under Articles 282–284 of the Jordan benefit from a reduction of and exemption from
Penal Code, with a penalty of one to three years’ penalty for an Honor Crime if they catch one of their
imprisonment. The penalty shall be severe ascendants or descendants committing Adultery, or
(Mushadad) if Adultery is committed to the marital other wrongful acts intruding on the family's
home, but the reality is completely different. If a honor. Most of the honour killing occurs in the
woman is accused of adultery, the law is taken into countries where the concept of women as a vessel of
hands by the family. As per the statistics, Jordan had the family reputation predominates.This Article of the
one of the highest rates of honor killings in the world, Code empowers man but nowhere talks about the
murders of women whose relatives believe they have scenario in which a married woman is raped, what
brought dishonor on the family. about her basic human right. Here, the rights are
CEDAW is the first legal document which provides violated, but the worst part is she is even in danger of
legal reliefs against the women violence that suffers losing her life.
due to social, religious, cultural tradition and
customary practices like honour killing. Universal
Declaration of Human Rights has binding to protect One of the woman activist reported about the raped
the human being. It has to protect the rights, liberty of women accused of Adultery in Amnesty International,
persons and protect from the heinous types of “There was one case where a family shot a woman,
violence such as honour killing crimes. she was admitted into hospital, and when she was
being transferred from surgery to the intensive care
unit, they came back and shot her again. The woman
had said she wanted to live on her own. She said
she'd wear a veil when she went outside…”

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COMPARATIVE LAW E-NEWSLETTER NEWS JACKKING

In number of other countries discriminatory laws are

existed in the National and International laws where
by women are not treated equal with men in all SOCIALLY DISTANCING THE SOCIALLY
matter,it is a sign of indirectly instigating and
DISTANT
promoting the perpetration of honor killing against
women in the name of customary practices.
But the problem in Jordan is that the laws exist but Ms. Soumya Thakur, 4th Year Law, Student, MNLU, Aurangabad
the implementation of the same is left in hands of the Mr. Devansh Kathuria, 4th Year Law, Student,
MNLU, Aurangabad
family members itself when it comes to the women.
The law is neither accepting the changes like other
Sex work is an umbrella term, portraying the
countries did in due course of time rather being
exchange of sexual services for money or reward.
ignorant when it comes to rights of the women per
Sex work is a work and sex workers deserve the
se. Jordan, unlike other Islamic states has taken lead
same rights and protection as any other profession
with respect to various laws from time in memorial.
does. Before the corona virus pandemic there were
But when it comes to adultery Jordan has to come up
already numerous difficulties for those working in the
stringent laws in practice than in paper. The country
business. Unreliable incomes, risk of violence, and
should ensure that systematic action is taken to
discrimination are just a few. They are amongst the
intervene to protect women where there is a credible
most marginalized groups with extreme sufferings
risk of so-called “honour” killing or other form of
and no security. Though they have historical reality
gender-based violence, including by way of
with cultural connotations, there is a still a social
investigation and prosecution, and through the
stigma attached to the profession wherein it is not
imposition and enforcement of protective orders.
even seen as a work. The reason behind there
sufferings like poor health, violence and abuse is the
Even we have to make sure that the Jordanian
criminalization of the sex work. Criminalization
authorities should monitor and advocate for an end to
consistently undermines sex workers ability to seek
administrative detention in Jordan, including accused
justice for crimes against them. It also has a negative
of sex outside of marriage, and in cases of
effect on other human rights. In countries that ban
“protective custody”.
sex work, sex workers are less likely to be able to
organize as workers, advocate for their rights, or to
Like as pointed out by Oscar Wilde “Women have a
work together to support and protect themselves.
much better time than men in this world; there are far
more things forbidden to them” Does it really have to
be…Does woman have to wait for social The prevailing neglect and institutional stigma in the
conscienceness to catch up to her need of equal society for ages has had a very bad impact on the
right and safety? lives of sex workers and to add to their misery they
were faced by the challenge of the global pandemic
and their lives took the turn for the worst as the very
intimate nature of their works made them the most
vulnerable targets of the virus if they keep working
and without work and economic security they
struggle to survive every day of the pandemic.
In a survey by the International Committee of the Sex
Workers in Europe (ICRSWE), it was found out that
lives of most of the sex workers in Central Asia and
Europe hangs on an economic margins and have
very less savings and governmental aid to fall back
on therefore are faced with abuse of social and
economical rights.

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 COMPARATIVE LAW E-NEWSLETTER

The committee therefore suggests that there shall be The society can along with the government work for
more representation of this group in the different the rights of such marginalized groups and voice
pandemic relief schemes of the government. their interest and see them as ordinary citizens and
look beyond the stigmatized ideas of their workings
The biggest hurdle along the globe standing in to lend a shoulder of support and care to them in the
between the sex workers and their rights is the time of crisis like this. We can always learn our
criminalization of their work in almost all the legal lesson of social distancing to fight the pandemic and
systems. As it has been consistently found across also reconcile with the socially distant groups to form
different legal systems that criminalization of their a more integrated and unified society and be better
work makes them vulnerable to violent crimes like prepared for such future crisis.
robbery, rape, assault and murder as they are
understood to be easy prey by their attackers as they
are deeply stigmatized very unlikely to file complaint
or submit their grievances to the police due to the
apprehension of getting arrested for their
involvement in criminal activity.

Most of the sex workers across various legal

frameworks are conflated with illegal human
trafficking prohibitions laws for e.g. Sex work in India
is conflated with trafficking for sexual exploitation.
The principal legislation dealing with trafficking is the
Immoral Traffic Prevention Act, (ITPA) supported by
Section 370 – 373 of the Indian Penal Code (IPC). It
is therefore suggested that to efficiently tackle the
abuse of these workers and to come out of the
pandemic as an integrated society every legal
system should now consider the following:

1. Removing consensual sex workers from the

scope of Human Trafficking Laws and
recognizing the consensual exchange of sex
between adults and rid the sex workers from the
stigma associated to them due to the
criminalization of their works.
2. Further schemes policies and laws safeguarding
them from serious violent crimes against them.
3. Abolish compulsory detention and rehabilitation
centers.
4. Establish skill empowerment centers for victims
of trafficking for sexual exploitation
5. Introduce healthcare benefits for these people.
6. Recognize reliefs to be directed towards such
workers under relief schemes for pandemic.
7. Launch awareness campaigns aimed at getting
rid of stigmas associated with such workers.

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 ABOUT MNLU,AURANGABAD

Maharashtra National Law University [MNLU], Aurangabad, was

established in the year 2017 in the State of Maharashtra with the
objective of imparting quality legal education. The commencement of the
University has been based on the aspirations of the people of the
Marathwada region for an institution of national importance in
Aurangabad.