“Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?”
-Author Ernest J. Gaines
In the last few decades, the LGBT+ community was something no one wanted to talk about. It was a topic that was considered distasteful and something that society would never accept. People observed it as a stage one goes through when some unnatural elements are persisted in their bodies. September 6, 2018, marked an iconic day for the Indian LGBT+ community. The Supreme Court of India struck down Section 377 of the Indian Penal Code, decriminalizing the LGBT+ community, leaving just about everyone euphoric all over the nation. This milestone ruling was imperative for not just the fundamental rights of individuals but it was a green signal towards developing a more inclusive, harmonious, and colorful social order.
What is the LGBT+ Community?
The initials of LGBTTQQIAAP (Lesbian, Gay, Bisexual, Transgender, Transsexual, Queer, Questioning, Intersex, Asexual, Ally, Pansexual). In use since the 1990s, the term is an adaptation of the initialism LGB, which was used to replace the term gay about the LGBT community beginning in the mid-to-late 1980s.
The infamous section of the Indian Penal Code, 1860 which reprimanded all kinds of non-procreative sexual activities was enacted in the pre-independence era by the British colonial Government. The repressive law was not only fixed against the queer population but also sheltered all other forms of non-traditional sexual intercourse even in the course of the heterosexual union such as oral gratification. This law was a reminder of the conformist Victorian morality which never had any place in a democratic country like India.
Nevertheless, it took almost a century and almost two decades of extensive court combat to end this predicament that was a result of such a deep-rooted discriminatory legal provision that had been weaponized and structured solely to harass and exploit anyone and everyone who didn’t know about the traditional norms on sex and gender identity.
Post Judgment Scenario
After the historic decision of the Apex Court, people had assumed the fight for LGBT+ rights has concluded, but that is far away from the truth.
Despite homosexuality being (JUST) decriminalized, the legal purview towards homosexuality in the Indian society remains majorly antagonistic and detrimental in several ways. The reasoning - there persists a mammoth gap amongst the statutory and the jurisdictional development of laws catering to the LGBT+ community in India.
Even though the Supreme Court of India through its landmark judgments such as the National Legal Services Authority v. U.O.I, Navtej Singh Johar v. U.O.I, and K.S. Puttaswamy v. U.O.I have laid the foundation to discuss providing the queer and non-binary community with a significant amount of basic civil rights, the administration has unquestionably been a piece of botched machinery in terms of keeping up with the topical progress that was envisaged by the people of India through these judicial pronouncements.
What about Basic Human Rights?
There are basic rights given to any person in a democratic society. But in the “Indian” democratic society, these rights are only granted to a person who abides by the heteronormative social conventions.
Right of Marriage
Marriage has been one of the most robust and significant foundations of the anthropological civilization. Overall, these centuries, it has progressed and rehabilitated its systems but what remained static is that marital unions stay to be a universal phenomenon. This has more worth particularly in the case of India, where the concept is so deeply entwined that everyone is expected to be a part of it. In India, matrimonies are considered as a consecrated and a diving institution. Marriage apart from regulating sex life is also a bond built on financial and emotional interdependency.
Lata Singh v. State of Uttar Pradesh
The right to marry is not explicitly stated in the Constitution. But, in the landmark case of Lata Singh v. State of Uttar Pradesh, the apex court construed it to be a fragment of Article 21 of the Constitution of India. The Supreme Court in this case of inter-caste nuptial specified that after a person attains the age of a major, he/she can wed whomsoever he/she desires. However, by repudiating and barring the LGBT+ community from being able to marry whoever they want, we are in a way breaching a court’s precedent.
The denial of marriage privileges to the LGBT+ community robs the same-sex couples of societal and lawful acknowledgments as well as the state-run assistance that married individuals relish. Nevertheless, it is indispensable to also reiterate that the foundation of marriage from the time of its initiation has been exclusionary towards certain groups of people and every time any group of people has been encompassed or excluded from being able to wed, it has generally been conveyed with an encounter amongst public policy, religious convictions, and societal standards.
To recognize and agree to take same-sex marriages as a general norm, new decrees and enactments should be called up, altered or injected, as the current regulations cannot be considered to be functional in the case of LGBT+ marriages.
In India, adoption is administered mutually by secular as well as sacred laws. In the case of Hindus, it is overseen by the Hindu Adoption and Maintenance Act, 1956 while there are no personal laws regarding adoption in the case of Muslims.
Then other than this, there is another law i.e. the Juvenile Justice Care and Protection of Children Act, 2015. This act is secular and permits adoption irrespective of the religion of the individual. However, no such mention of a provision disregarding discrimination based on sex for adoption is there.
As per Section 5(3) of the Adoption Regulation Act, 2017, only a duo signifying a stable affiliation of two years is qualified to adopt a child. Additionally, the section brings in usage the terms “husband” and “wife” which fundamentally means that it does not identify the right of adoption in the case of same-sex partners. Apart from this, since there are separate sets of adoption rubrics followed in the case of men and women, the existence of such laws to trans-couples will eventually amount to several ambiguities.
All these provisions in some way or the other can be rendered as unconstitutional due to its ignorance and lack of attention towards the Section 377-decriminalization judgment as even after such a momentous decision, the existing laws continue to expel the LGBT+ community from adopting children altogether. This reveals and echoes once again that homosexual couples are still not to be considered equal before the law.
Guardianship (or Custody) principally denotes to a customary set of constitutional rights and duties that an adult has over the personhood and possessions of a minor. In India, guardianship in the case of Hindus is administered by Hindu Minority Guardianship Act, 1956 while the Guardianship and wards Act, 1956 is a secular commandment that is pertinent to all the residents of India. In India earlier as per the traditions, only the father was measured as an accepted guardian and had the solitary right over the child.
Further, as per Section 6 of the Hindu Marriage Act, 1955 the mother can have the guardianship right over the child only next to the father. In 2010, the legislature amended the regulation to offer equal guardianship rights to both mother and father. In 2015, in the case of ABC V. NCT of Delhi, the court of law gave a very copious ruling and recognized the guardianship rights of the unwed mother.
Though the language of the act is gender-neutral, it is premised on the notions of the gender binary. Thus, the existence of LGBT+ community parents where the gender is not clear, the application of these laws will pose some problems, hence it is important to define such terms.
According to the latest Surrogacy Bill of 2020 approved by Parliament, unmarried people and LGBT+ community partners are verboten to have their children through surrogate motherhood. Granting that the bill has been approved to proscribe the commercialization of surrogacy and the manipulation of mother and child, in its place of fulfilling the purpose, it has been condensed to an “obstinate” piece of law that restates the philosophies of an “archaic family arrangement”.
Which is not in synchronization with the contemporary times and further gives the impression of having no nexus with each other as if this would have been the chief agenda of the legislature then the extra emphasis would have been given to recuperation and amalgamation of the surrogate mothers into our social framework.
Therefore, on detailing into these circumstances, the idea of granting the right to surrogacy to the LGBT+ community appears itself to be an even more detached dim vision.
Right of Inheritance
Inheritance and Succession regulations in India are administered by a mix of personal laws and secular laws. Hindus are governed by Hindu Succession Act, 1956, while Muslims and Parsis have their customary laws and then there is an Indian Succession Act, 1925 which after a sequence of revisions and adjustments now applies to all the Indians who are married under the Special Marriage Act, 1954.
Parallel to the other laws, the expression “marriage” in the inheritance laws is restricted only to the heterosexual matrimony. Thus, before this law can be functional in the case of LGBT+ community partners, the law must recognize same-sex marriages.
Right to have Protection Against Discrimination at the Workplace
LGBT+ workplace review of 2016 exhibited that more than 40% of the LGBT+ community in India have been victims of workplace harassment as a result of their gender/ sexual identity. Many LGBT+ community individuals habitually have to shelter their sexual identities for the reason that of the fear of probable judgment or losing their careers altogether.
Consequently, access to service and prejudice at the workplace remains to impose a constant battle for the LGBT+ community. Apart from fronting consistent discrimination and aggravation at the workplace, there are some other whys and wherefores also to authenticate that the existing employment laws are not comprehensive of the LGBT+ community such as lack of employment benefits, gratuity benefits, maternity benefits, etc.
Right to have Protection Against Sexual Harassment at the Workplace
The current enactment i.e. Sexual Harassment of Women at Workplace (Prevention, Prohibition & Redressal) Act, 2013 concerning the sexual harassment caters to only women as a victim and fails to take into account that the harassment can happen regardless of the gender of an individual. That is, the distressed party can also be a male, transgender, or any person from the LGBT+ community. Thus, what we undoubtedly want is a more gender-neutral regulation to deal with workplace harassment cases.
A problem that may arise here is the “sexually colored annotations” or “unsolicited behavior” that may have a different construal and scope in cases of the LGBT+ community. Thus, bearing in mind the prolific transphobia and queerphobia, the gender-neutral harassment laws must also be conveyed with anti-discriminatory rules to prevent misappropriation of such regulations against the LGBT+ community.
These issues are adequate to make worry down someone’s spine as the LGBT+ community is imperiled to extreme physical, mental, and emotional exploitation. This stands in clear violation of the equal protection clause and violates Article 14 of the Constitution of India, apart from denying these children a shield against discrimination, right to life, and right to education enshrined under Article 15, Article 21, and 21A respectively. Section 377 is done and dusted but the LGBT+ community needs concrete guidelines and regulations to protect them from bullying.
The humiliation and apathy the LGBT+ community suffer through the threats of rape, incidents of hitting, groping and kicking, etc.
The general law of Human Rights states social norms, tradition, ethos or morals can never be a binding defence to overpower another individual from asserting their fundamental and constitutional rights. If we start mitigating the whole shebang based on cultural views, social morals, and public dogma then there would have been no liberal legislature ratified in our country and we would have never been able to eradicate the social evils of Child Marriage, Sati, Dowry, and Infanticide, etc.
Therefore, the administration must smear away its conformist and unaccepting nature and instead take revolutionary steps to abolish the humiliation, discernment, and abuse enveloping the LGBT+ community. It is now the right time for the government to articulate novel laws or change existing laws to cater to the needs and basic standard of living for the members of the LGBT+ community and transmuting our country sustainably into an unbiased and vivacious knowledge society.