By Vikram Chandrasekhar
Introduction
India, as an apt example, has been a country which since the dawn of the Vedic liturgical tradition has accepted and harmonized with the notions of gender fluidity and queerness centuries before the Western world had even attempted to reconcile with these terms.[1] The crux of the gender inequality crisis, denial of civil liberties and cultural imperialism has arisen primarily due to the fact that the predominant majoritarian group seeks to enforce their will upon another being or collective group. The erstwhile Indian law against homosexuality and the constitutional validity of Section 377 of IPC was challenged in the Delhi High Court in the Naz Foundation [2] case as being violative of fundamental rights guaranteed under the Indian Constitution.
This archaic law violated the Right to Liberty guaranteed under Article 21 of the Indian Constitution while also setting forth unreasonable and arbitrary restrictions. It is a well-established principle under Article 14 of the Constitution that there ought to be a just and reasonable nexus between the classification and the object sought to be achieved by a certain legislation. Since Section 377 gave a very narrow view to the distinction between procreative and non-procreative sexual acts, this thereby proved that the intent of regulating sexual morality has no rational nexus with the classification created. While the High Court ruled in the favour of the LGBT community, its verdict was overturned by the Supreme Court. However, this could not extinguish the movement as arguments in favour of decriminalizing homosexuality was more vehement than ever before.
The Epoch of Transformative Constitutionalism
The Supreme Court ultimately on 6 September 2018 ruled unanimously in Navtej Singh Johar v. Union of India [3], that Section 377 was unconstitutional to the extent that it criminalises consensual sexual conduct between adults of the same sex. In the aforementioned case Chief Justice Misra, penning the judgement for Justice Khanwilkar and himself, said that targeting LGBTQ community members for their sexual preference violated their fundamental rights to equality, right to freedom of expression and right to choice coupled with right to dignity enshrined in the Constitution under Article 14, Article 19 and Article 21 respectively. Justice Nariman further added by stating that the LGBT community is entitled to the equal protection of the law, and is entitled to be treated equally in the society without the bane of any stigmatization being attached to any of them.
The Denial of Adoption, Marriage and Surrogacy Rights to the LGBT
India’s LGBT community may have won its battle to decriminalise homosexuality, but the victory will gather real meaning only when they secure the right to marriage, inheritance, guardianship and adoption. The Supreme Court had recently dismissed a review petition seeking various civil rights, such as same-sex marriage, adoption and surrogacy for the LGBTQ community. This petition had sought civil rights of the LGBTQ community as part of their basic human rights and said that these were not addressed in the apex court’s judgement in the Navtej Singh Johar case. The plea not only contested for the recognition of their rights to same-sex marriages, adoption and surrogacy but also sought directions to enable them to serve openly in the army, navy and air force.
The petition also highlighted the fact that our textbooks side-line sexual orientation and transgender as third gender. This governmental policy of omission has created a culture of treating them as aberrations. The plea concluded that it was “immoral” to deny homosexuals the freedom to marry each other as long as their relationship was consensual and harmless. The denial of these basic rights inadvertently causes psychological, societal and emotional degradation to them. However, the bench headed by Chief Justice Ranjan Gogoi referred to the verdict of the five-judge Constitution bench in Navtej Singh Johar, by which consensual homosexual intercourse was decriminalised and said that it was not inclined to entertain the review plea seeking other reliefs.
The Right to Marriage
Marriage is essentially a contract that gives you certain rights, these may include property rights and child custody rights amongst others. Couples in the LGBT community cannot be arrested per se for having a ceremonious marriage, but they are inherently deprived of all the rights and privileges that marriage entails. Thus, a marriage of this nature does not have legal sanction or the recognition of law. In a country like India, where practices like child marriage, despite being expressly illegal, are still practiced under the veil of culture and custom, the stigma associated with gay marriage seems abysmal. As of today, only 35% of Indians accept the idea of same sex marriages as per a 2016 survey by the International LGBTI Association (ILGA).[4] The codified or uncodified religious laws do not talk about marriages with the same sex. But the equal right to life guaranteed to citizens by our Constitution cannot be overshadowed by the archaic anti-LGBT beliefs and customs. Article 21 of our Constitution strives to uphold personal choices and individual freedom of all persons. Individual freedom is a succinct term that incorporates every aspect of rights that form the ‘personal liberty’ of an individual and the right to marriage invariably falls under the same. The lack of legal provisions for same-sex marriage in our civil law as well as personal laws reveals the requirement for either amendments to the Special Marriage Act or a comprehensive new legislation for the LGBT community.
The Right to Adopt
The Union Cabinet recently decided to stop same-sex couples from adopting children in a dismal move that could prevent the entire LGBT community from becoming adoptive parents. This decision was taken while considering amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000. However, the draft Bill, which also covers rehabilitation and adoption of children, does not specifically forbid same-sex couples from adopting. However, the current law allows unmarried men and women above the age of 30 to become adoptive parents. Single Indians belonging to the LGBT community are not specifically barred from adopting, but whether the cabinet decision will change this shall become apparent when the Bill is tabled in Parliament. The Central Adoption Resource Authority [“CARA”] is a statutory body under the Ministry of Women and Child Development that regulates adoption of children by foreigners and Indian residents through inter-country and intra-country adoption regulations, respectively.[5] CARA guidelines expressly prevent foreigners in same-sex relationships from adopting children in India. While many Indian LGBT persons in same-sex relationships have adopted children as single parents, but their respective partners have no legal rights over the child.
The Right to Avail of Surrogacy
The Surrogacy (Regulation) Bill 2016 that prohibits commercial surrogacy has come into a spate of criticism for reinforcing archaic and stereotypical ideas of family and consequently prohibiting homosexual couples from availing surrogacy benefits, even for the sole purpose of altruistic surrogacy.[6] Effectively, the law bars women from accepting payment to become surrogates with the aim of effectively mitigating the exploitation of women from low-income group families across the country. While this is a progressive and noteworthy provision, the clause stating that the surrogate must be a “close relative” of the couple is extremely patronizing and archaic. Another regressive aspect mandates that only a man and women, married for a minimum period of five years, can commission surrogates. This evidently discriminates against not just homosexual marriages but also those who marry late and couples in live-in relationships. Thus, the exclusion of the LGBTQ community resulted in the denial of equal rights thereby making the bill highly prejudiced against them and not in sync with contemporary ideals.
Conclusion
The blind prejudice and outright discrimination faced by the LGBT community has been reduced to a significant extent after the historic ruling of our Apex court, but there still persists societal stigmatization and denial of basic civil liberties which grossly undermine their cause. While it has been established that transformative constitutionalism is the burning need of our contemporary society, to ensure that it truly lives up to the spirit of the Constitution is not the job of the Government or Judiciary alone, but that of all citizens of our country. It is our informed opinions that make the laws dynamic and not mere static pieces of legislation. While we take the first step by decriminalizing homosexuality, the arduous quest of transformative constitutionalism and its integration with public policy has miles to go.
The author is currently in their third year, pursuing their law degree from School of Law, Christ (Deemed to be University), Bangalore.
[1] Jeffrey S. Siker, Homosexuality and Religion 127 (2006).
[2] Naz Foundation v. Government of NCT of New Delhi and Others, WP(C) No. 7455/2001 (India).
[3] Navtej Singh Johar and Ors. v. Union of India, AIR 2018 SC 4321 (India).
[4] ILGA/RIWI Global Attitudes Survey on LGBTI People, http://www.ilga.org/ (last visited Mar. 24, 2020).
[5] Central Adoption Resource Authority, http://cara.nic.in/ (last visited Mar. 24, 2020).
[6] The Surrogacy (Regulation) Bill, 2019, No. 156-C, Bills of Parliament, 2019 (India).
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