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  • Jun 07, 2019
    One of the main objectives of the United Nations is to bring about peaceful means and conformity with principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of peace. In order to achieve this purpose it was essential to establish a judicial organ of the United Nations. According to Article 92 of the UN Charter, the International Court of Justice is the principle judicial organ of the United Nations. The court carries out its functions according to the Statute which is an integral part of the Charter. International Court of Justice consists of 15 judges who are elected by the General Assembly and Security Council separately. The judges of the court are required to be independent. The Court elects its President and Vice President for a period of 3 years. They may be re-elected after the expiry of the time. The Court may from time to time form chambers composed of three or more judges as the Court may determine for dealing with particular categories of cases. The Statute of ICJ also lays down the provisions regarding the appointment of ad hoc judges. The judges are elected for a term of 9 years and can also be re-elected after the expiry of their term.   Who can refer the dispute to the Court? Article 34 of the Statute lays down that only states may be the parties in cases before the Court. It implies that it is not necessary that state should be sovereign and independent in order to become parties to the Court. India was a party to the Statute before it became independent. Article 93 (1) provides that all members of United Nations are ipso facto parties to the Statute of the Court and hence they all have automatic access to the Court. Article 92 Para 2 of the Charter provides that non-members of the United Nations may also become parties to the Statute. They could do so only on conditions determined in each case by the General Assembly on the recommendation of the Security Council. Other international organizations may seek advisory opinion of the Court under Article 34 on any legal questions. According to Article 59 of Statute of I.C.J its decisions are binding only on parties to the dispute in respect of particular dispute and not on any members.   The jurisdiction of the court is broadly of 2 types: 1. Contentious JurisdictionIt is one of the fundamental principles of International Law that no state can without its consent be compelled to submit its disputes with other states either to mediation or to an arbitration or to any kind of pacific settlement. Consent is the basis of jurisdiction of an International Tribunal. The Court cannot proceed to adjudicate a dispute merely because one state files a case against another, the other party too, the defendant states, has to agree that the Court should try the case. When the Court decides the case on the basis of the consent of disputant parties, the jurisdiction of the Court is called “contentious jurisdiction”. If the parties to a treaty or convention stipulate in that document that dispute under it shall be referred to the Court, the jurisdiction of the Court is established. In such cases the consent of the parties to the jurisdiction of the Court is given in advance. In voluntary jurisdiction the consent is given before the occurrence of the dispute. 2. Advisory JurisdictionAccording to Article 65 of the Statute the Court may give an advisory opinion on any legal question to anybody which has been authorized in accordance with the Charter of United Nations or in accordance with the Statute. The Charter under Article 96 Para 1 lays down that the Security Council and General Assembly may request to the Court to give an advisory opinion on any legal questions. In addition to them, other organs of the United Nations and specialized agency may also request for an advisory opinion. ICJ has discretionary power to give advisory opinion. The opinion of ICJ is also not binding on the organs seeking the opinion.   All the members of the United Nations are required to comply with the decision of the Court in accordance with Article 94 Para1 of the Charter. If any party to a case before the Court fails to perform its obligations under a judgement of the Court, the other party may bring the matter before the Security Council in accordance with Article 94 para 2 of the Charter. The Security Council is empowered by the Charter to make recommendation or decide upon measures to be taken to give effect to the judgement. In case the Security Council decides upon measures to be taken to give effect to the judgement of the Court, it has again a choice between two kinds of actions i.e measures which may be taken either under Article 41 or 42 of the Charter.
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  • May 30, 2019
    Introduction Since a very long time, the LGBTQ community has been facing injustice, torture, inequality, taunts, physical and sexual abuse. Being homosexual is not a disease but is natural. There have been a lot of legal development in protecting the rights of LGBTQ and in terms of a legal standpoint, India is now doing very well in maintaining the rights of the LGBTQ community. However, when it comes to societal development, there is a still a lot of work that has to be done. Though the trans-genders are given the legal status of third gender and have same fundamental rights as other citizens, they still face a lot of discrimination and criticism by the society. They are still seen as a social outcast. However, a lot of communities see hijras as spiritual and consider their blessings as an important part of marriages and when children are born in the family. Homosexual teenagers still are victims of bullying and teasing in schools. The are not only taunted by friends but even by their own family. They are also considered as mentally ill people. LGBTQ community are not given jobs or housing facilities because of which they cannot maintain a basic livelihood. Moreover, they are sexually abused by friends, relatives and sometimes even law enforcement authorities. They are also discriminated against in multiple occasions which is against their right to equality which Article 14 of the Indian Constitution guarantees.  A lot of members of the LGBTQ community are made to undergo shock therapy for forceful sexuality conversion which is a grave violation of their basic human rights. Just like anybody else, the LGBTQ community has the right to decide what should be and should not be done to their bodies and nobody can force that upon them.   Judicial Approach As per Section 377 of the Indian Penal Code, 1860, “Unnatural Sexual Offences” is a crime. But, it does not define what “unnatural” actually is in the penal code because of which, a lot of members of the LGBTQ community have faced humiliation, violence including violence from police, blackmailing, sexual abuse, etc.  Section 377 of IPC was a major obstacle between LGBTQ community and their human rights.   National Legal Services Authority v Union of India (2014) is a landmark judgement of the Supreme Court of India. It declared “trans-genders” as third gender and affirmed that fundamental rights granted under the Constitution of India will be equally applicable to transgender people, and gave them the right to self-identification of their gender as male, female or third-gender. This judgement is a major step towards gender equality in India. Moreover, the court also held that because transgender people were treated as socially and economically backward classes, they will be granted reservations in admissions to educational institutions and jobs.  In 2009, Delhi High Court decriminalized section 377 of the Indian Penal Code, 1860 in the famous Naz Foundation v Govt. of NCT of Delhi case. However, this judgement was later waived off by the Supreme Court. The Supreme Court considered the LGBTQ community as a minuscule minority which does not need any protection of rights.  In 2018 September, the Supreme Court of India pronounced Section 377 as unconstitutional and decriminalized homosexuality. The five-judge bench- comprising Chief Justice of India Dipak Misra and Justices R.F Nariman, A.M Khanwilkar, D.Y Chandrachud and Indu Malhotra were unanimous in its decision. They said that section 377 is irrational arbitrary and incomprehensible as it fetters the right to equality for LGBT community. LGBT possess same rights as other citizens. What society thinks has no say to when it comes to people’s freedoms. They further said that social morality cannot violate the rights of even one single individual and society owes an apology to the LGBTQ community. “Members of LGBT community and their family members are owed an apology from society for being denied equal rights over the years,” said Justice Malhotra.   Conclusion In conclusion, though the law has accepted the LGBTQ community as one among us, the society has not and still considers them as an outcast. Though they are equal in law, they are unequal in eyes of society. I propose the following suggestions: Creation of more NGOs that will work towards the rights of LGBTQ community. Promoting and Spreading awareness about homosexuality and how it is not a disease but is natural. Creation of adequate and proper housing and healthcare facilities for trans-genders. Unemployment needs to be minimized in the LGBTQ community so that they can promote and support a proper livelihood. Hijras should not have to be forced to become sex workers.  Physical, mental and sexual abuse against the LGBTQ should not be made fun of but should be taken seriously. Police should not abuse, but protect the LGBTQ just like how they would for other citizens. More and more people should be encouraged to accept the LGBTQ as a part of our society and not as an outcast. LGBTQ community should be taken care of through love, understanding and support. Just because their sexuality is different, we do not have the right to be unfair to them and ill-treat them. It is important to promote the idea that the homosexuals are also as normal as heterosexuals.
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