LGBT Rights in the Light of Hohfelian concept of rights

 Section 377 of the Indian Penal Code states offenses relating to unnatural offenses. It states “Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”[1] The ambit of Section 377, which was devised to criminalize and prevent homosexual associations - sodomy in particular, extends to any sexual union involving penile insertion. Thus even consensual heterosexual acts such as fellatio and digital penetration may be a punishable offense under this law. The IPC rules that man having sex with man is a criminal act and it is "against nature”[2]. But once the Supreme Court said that “Gay right is a matter of public interest”. The birth of gay rights has been from a long time in India. The movement to repeal Section 377 was led by the Naz Foundation India Trust, an activist group, which filed a public interest litigation in the Delhi High Court in 2001, seeking legalisation of homosexual intercourse between consenting adults. In 2003, the Delhi High Court refused to consider a petition regarding the legality of the law, saying that the petitioners had no locus standi in the matter. Since nobody had been prosecuted in the recent past under this section it seemed unlikely that the section would be struck down as illegal by the Delhi High Court in the absence of a petitioner with standing. Naz Foundation appealed to the Supreme Court against the decision of the High Court to dismiss the petition on technical grounds. The Supreme Court decided that Naz Foundation had the standing to file a PIL in this case and sent the case back to the Delhi High Court to reconsider it on merit.[3] Subsequently, there was a significant intervention in the case by a Delhi-based coalition of LGBT, women's and human rights activists called 'Voices against 377', which supported the demand to 'read down' section 377 to exclude adult consensual sex from within its purview.[4]

In May 2008, the case came up for hearing in the Delhi High Court, but the Government was undecided on its position, with The Ministry of Home Affairs maintaining a contradictory position to that of The Ministry of Health on the issue of enforcement of Section 377 with respect to homosexuality.[5] On 7 November 2008, the seven-year-old petition finished hearings. The Indian Health Ministry supported this petition, while the Home Ministry opposed such a move.[6] On 12 June 2009, India's new law minister Veerappa Moily agreed that Section 377 might be outdated. [7]

Eventually, in a historic judgment delivered on 2 Jul 2009, Delhi High Court overturned the 150 year old section,[8]  legalising consensual homosexual activities between adults. The essence of the section goes against the fundamental right of human citizens, stated the high court while striking it down. In a 105-page judgment, a bench of Chief Justice Ajit Prakash Shah and Justice S Muralidhar said that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution, which states that every citizen has equal opportunity of life and is equal before law.

The two judge bench went on to hold that:

The court stated that the judgment would hold until Parliament chose to amend the law. However, the judgment keeps intact the provisions of Section 377 insofar as it applies to non-consensual non-vaginal intercourse and intercourse with minors.

From the judgment of the Supreme Court it has been interpreted that violation of Article 14 of the Indian Constitution is on the cards for the LGBT’s. Hohfeld gives an analysis on the conception of rights. According to Hohfeld, rights can be classified as power, privilege, immunity and claim. The rights of the LGBT’s can be streamlined as privilege. Privileges are permissions to act in a certain way without being responsible for the damage done to other people who, simultaneously, are not in position to call in the authorities to prevent such action. An illustration of privilege under Hohfeld conception of rights is:

The eating of shrimp salad is an interest of mine, and, if I can pay for it, the law will protect that interest, and it is therefore a right of mine, to eat shrimp salad which I have paid for, although I know that shrimp salad always gives me the colic.

Hohfeld thought that this passage deals with two types of relations: the first one refers to the privilege of eating salad and the second one relates to a party’s claim for not being disturbed while doing so. Privileges may be accompanied with rights that impose duties on other people not to interfere. However, privileges can sometimes exist without the existence of a right.

A, B, C and D, being the owners of the salad, might say to X: “Eat the salad if you can; you have our license to do so, but we don't agree not to interfere with you”. In such a case the privileges exist, so that if X succeeds in eating the salad, he has violated no rights of any of the parties. But....if A had succeeded in holding so fast to the dish that X couldn't eat the content, no right of X would have been violated.

As privileges do not imply rights, rights do not imply privileges. For instance, a remainder person has no privilege “to enter the land but retains a right to keep trespassers off”.

It is also relevant to take notice that Hohfeld’s example is one of conflicting liberties: A‘s privilege to keep salad for himself, conflicts with the privilege of person X to take it from him. As said by Singer, Hohfeld showed how privileges can be legitimately in conflict. Such interferences represent a special case of damage for which victims have no legal recourse. X and Y can both have the legal liberty to eat the salad from the table. The dominancy will not result from common instruments of law but from power struggle which the state will not participate in.

Hohfeld shared the opinion that liberties which are not accompanied with duties imposed on other people to avoid interference with legal action do exist in legal systems and there are often good political grounds for such action. He relieved legislators of the burden of imposing a duty on other people every time when someone is granted a legal liberty. A rational legislator may take advantage of political concerns when making decisions on whether to impose the above duties in a particular case or not.

Such a privilege or liberty.....might very conceivably exist without any peculiar concomitant rights against «third parties» as regards certain kinds of interference. Whether there should be such concomitant rights (or claims) is ultimately a question of justice and policy; and it should be considered, as such, on its merits. The only correlative logically implied by the privileges or liberties in question are the «no-rights» of «third parties

The privilege of the LGBT’s is being violated and State being the other party needs to protect the privileges of this type of minority communities. According to Hohfeld privilege may or may not be accompanied with duties. But in this case the LGBT’s community interests need to be protected. Being a part of the society they also need adequate concern of the Government. Moreover Article 14 guarantees each citizen to have equality before the law. On one hand there is Section 377 of the Indian Penal Code and on the other hand you have the Indian Constitution which provides the Right to equality before the law. The jural correlative of privilege is no right and the opposite is duty. If we take the rights of the LGBT community they have a privilege. On the other hand the State also has duty to protect the interest of the LGBT community.  The State has a duty to protect the interest of the LGBT’s and with the court also passing saying that the dignity of the LBBT’s should be protected by the State. This is the duty of one party to protect the privilege of the other party. This only shows a analysis between the Hohfelian right’s conception and LGBT’s privilege to properly cope up in the society.

Moreover Article 15(2) of the Indian Constitution states that no person shall be discriminated on the basis of sex. When Section 377 is in force then it creates a clear contradiction with Article 15(2). This is because of the very fact that Section 377 curtails the right of the LGBT’s. And Article 15(2) provides fundamental right of non-discrimination on the basis of sex. If we look through the conception of rights by Hohfeld it can be clearly stated that Article 15(2) gives the privilege to the LGBT’s and that right is been curtailed by Section 377 of the IPC. Fundamental rights are negative rights and put the restriction on the State to act in a certain way. As we see that Hohfeld classification of rights we get a notion that LGBT’s rights would be claim rights. But when we link this with the Indian Constitution it clearly shows that these are a privilege.

Hohfeld conception of rights is quite a vague concept and generally it does not work in common legal parlance. The rights of the LGBT’s are also a vague conception and generally in modern day society it is just of no effect. If we take a look at the LGBT rights they are negative rights on the part of the government and same implies with Article 14 of the Indian Constitution. This shows that these types of rights cannot work in modern day legal system. And generally it’s just a vague notion and it cannot work in a working legal system.