This article has been authored by Himeesha Dhiliwal, a third year student at Jindal Global Law School.
The judgment of Navtej Singh Johar & Ors. v. Union of India decriminalizing Section 377 of the Indian Penal Code is progressive, denying the Lesbian, Gay, Bisexual, and Transgender community (“LGBT”) other forms of equality still remains a major concern and a threat to their fundamental rights. At the inception of the concept of marriages, marriage as an institution was considered to be a social affair, but this understanding has now become narrower as marriages turn more private. However, restricting marriages for the LGBT community is opting for an extremely conservative approach in granting equal rights guaranteed under Article 21 of the Constitution of India. The non-recognition or ignorance of same-sex marriages is a wanton act of outright discrimination is demeaning, undignified, and lacks the freedom and idea of self-fulfilment of oneself. Recently, the Delhi High Court issued a notice to the Centre via a petition filed by Abhijit Iyer Mitra, Gopi Shankar, Giti Thadani, and G. Oorvasi to recognise and legitimize same-sex. The primary contention that has been put forward against these marriages is that they are detrimental to the culture and must therefore be curtailed. This is undoubtedly a limited understanding of what the cultural implications and understanding of the LGBT rights are. In the 21st century, LGBT marriages and rights are not a matter of acceptance. They must be considered normal given the rapid access to information and globalisation. In which case a restriction on their rights to marry, adopt or lead a normal unregulated lifestyle becomes a significant aspect to their rights bestowed upon them as citizens of India. India is believed to have a living and a dynamic Constitution. Therefore, it becomes imperative to understand the causes of delay in the adaption to legal, social, and cultural changes from the lens of the LGBT community.
Presence of Homosexuality in Ancient India
The Rashtriya Swayamsevak Sangh said, “the Indian culture does not recognise Homosexuality.” But contrary to their uninformed statement, the Indian mythology and architecture acknowledge same sex intimacy in the Indian history and tradition. The Vedic System prevalent in India, back in ancient India recognised Homosexual Unions. Tritiya-Prakriti: People of the Third Sex, an extensively researched text with years of compilations and authenticity by Amara Das Wilhelm proves not only the existence of homosexuals but also their wide acceptance in the ancient Indian society. Ramayana by Valmiki depicts a scenario wherein Hanuman had witnessed the women embraced by Ravana kissing and embracing other women, thereby acknowledging same-sex intimacy. The famous “same-sex couple” of Rig Veda, Varuna, and Mitra depict the presence of homosexuality in ancient India. What better evidence to reply on than hundreds of years of visual “proofs” speaking for themselves making a strong point. One such extremely famous depiction can be found at the Khajuraho temple of Madhya Pradesh which is believed to have been built in or around the 12th century. The walls of this temple display overt homosexual imagery, sexual fluidity and proactive embracement between “woman-woman” and “man- man”.
Although, not all ancient Indian texts, literature, inscriptions, architecture, and paintings approve of homosexuality, but it can be concluded that a repeated reference is evidence enough to ascertain its existence in those days.
Legal Provisions Governing the LGBT Community
While the Navtej Singh Johar judgment was instrumental but very little has happened ever since. While the private relationships were allowed, the judgement left out any provisions and actions regarding right to marry, property, children, divorce etc. It made a problematic distinction between public and private. Where the Courts ruled that due to the right to privacy, the queer community was entitled to a private life, however the silence on their public existence left significant gaps in fully accepting the queer community. The Constitution has been invoked in the past to ascertain rights of marginalized communities, to protect their Constitutional rights. Article 21 of the Indian Constitution provides that no person shall be deprived of the right to life and personal liberty. When the members of the queer community are legally restricted to carry forward basic life events such as marrying or openly acknowledging their sexuality, it can be understood to be a take at their personal liberty.
Non-recognition of queer rights in personal laws and debarring them from basic rights such as right to marry and adopt is a clear violation Articles 14 and 15 of the Constitution. Article 14 provides for equality before the law and Article 15 prohibits discrimination against sex. While it is important to mention that sex and gender identity is not the same, for its Constitutional understanding we can see that sex could also to some extent cover gender identities. Thus, if judicial discretion is used it is possible to argue that discrimination solely on the base of gender identity could be read as a violation of Article 15 of the Constitution by expanding the scope of sex to understand the relatively new gender identities. Scope of Article 14 is concerned when the law fails to treat people with alternate gender identity in the same light as cis-gendered people, specifically when the queer community is discriminated at jobs, marriages etc. it can be seen that the community has been put at an unfair standing with respect to being treated equally before the law.
● Gender Neutral Committees
When one looks closer into the drafters of the laws or the individuals passing judgements, it must be noted that one has a preconceived notion of bias based on the influencing ideology that do influence the outcome of a legislation. This is one of the which prevents the Bill from turning into a law. To deal with the prevalent disparity and lack of representation, gender neutral committees must be set-up to formulate and approve Bills that turn into laws since they are the ones subject to the problems and discrimination. Greater the representation, greater will be the inclusivity and therefore, greater the progress.
● Community-led Reforms
Gender justice and gender oppression is tied to classism, casteism, racism, ageism, and albinism. So, justice for the LGBT community can be achieved only when these forms of oppression ceases. Often, legislations, policies, and laws that are aimed towards supporting the disadvantaged rather contribute to the growing violence and oppression that tame the dog. The lack of public acknowledgement hampers the fundamental rights that have been affirmed to every citizen under Articles 14-22 (right to equality and rights to freedom). These rights are further enforceable under the right to Constitutional remedies (Article 32-35). With the narrow and orthodox legislations in place regulating every action or inaction of them be it adoption, self-defence against harassment or violence, involvement in sex trade, pregnancies, marriages, HIV status etc. they are punished or abused for it all without sound reasoning and/or justification which makes sense. Therefore, community-led reforms would build an uproar, start a conversation and normalise the ideology making it easier for the individuals to accept people as they are without judgements or exclusions.
● Uniform Civil Code
The Hindu Marriage Act, 1956 and the Special Marriage Act, 1954 have a limited scope and glorified exclusion. Both the legislations legalize the concept of marriage between two individuals, therefore not specifying any gender identity or sexual orientation. Although, there is no statutory barring under these two Acts, registration of the same is rejected throughout the country. They are barred from enjoying the facilities and benefits as the heterosexual married couples do. With making subdivisions and distinctions amongst religions, will only escalate the discrimination. Therefore, establishing a Uniform Civil Code will roll uniformity for all inter-caste/religion/sex marriages by way of legal pluralism.
It is imperious that the rights of relegated communities are protected in order to make sure that they can live a dignified life. Not being legally accepted does not only hamper legal remedies but has the effect of rendering a person invalid. Not being recognized further strengthens the social stigma and gives no incentive for people to accept the queer community as a normal part of the society.
The Indian judiciary is proud of its activism with the decriminalization of section 377 as an uncanonical step in the field of gender justice. National Legal Services Authority v. Union of India and Navtej Johar are two extremely famous and historic judgements focusing on an empowering and gender-neutral approach. Although the judgement passed was a battle half done but that does not end the war.
With the judiciary passing revolutionary judgements that are painting the brighter picture of reshaping the social structure of India, a single organ of the country cannot lead to the desired results. It has to be a cooperative effort of all, that is, public, offices, and government bodies. An immense communication and coordination between them would ease the implementation of these schemes. Active gender sensitization workshops and seminars would build an empathetic outlook would comfort the agonizing plight of the LGBT community. In conclusion, a collective functioning of the people, government will together build an inclusive and accepting society for the LGBT to live in.