Authored by Mimansha Pandey and Urooj Fatima, 3rd-year law students at the Vasudev College of Law affiliated to Kumaun University, Nainital, Uttarakhand
“Imagine a picture of an unintentionally released bird from a cage. It will not take off right immediately. According to Ashok Row Kavi, the founder of the LGBT rights organization Humsafar Trust, “It will look around first, try to make sense of its surroundings because all the years of confinement have left it confused, ignorant of where to fly or how to get to wherever it desires."
Abstract
Many problems challenge our society today, and rather than addressing them head-on, we frequently attempt to hide them. The Indian administration expressed satisfaction that same-sex marriage would be at odds with Indian customs. There isn’t any uncodified personal law or legal recognition of same-sex marriage in India. The subject of whether same-sex marriage should be legalized was raised in numerous petitions that the Supreme Court heard. The petitioners argued that because India decriminalized gay relationships in 2018, there is no reason why it shouldn’t permit non-heterosexual couples to get married in 2023. It will be against equal marriage rights. However, respondents were satisfied that the family is the fundamental social unit and that non-heterosexual couples cannot form a family since they are unable to procreate. Public decency and morality cannot be used as justification for restricting the LGBT community’s fundamental rights to freedom of expression and choice beyond a reasonable and logical limit.
Introduction
India’s society is “Orthodox,” “Misogynist,” and “Homophobic.” A 2017–18 study by the Center for the Study of Developing Societies (CSDS) on the “Attitude, Anxiety, and Aspirations of Indian Youths” was carried out across eight states. According to the poll, 28% of people supported a sexual connection between two men and two women, 46% objected, and the other people were undecided.
In the case of Shakti Vahini v. Union of India, it was decided that the fundamental right to freedom of expression under Article 19(1)(a) was ruled to include the right to choose a sexual partner. As soon as two adults decide to enter into matrimony, neither the family nor the community nor the class need to give their approval. It is against the moral principles of the Constitution to stigmatize or criminalize homosexuals because of their sexual orientation. Sexual acts cannot be seen through the prism of traditional morality or social morality, which only consider sexual acts as a means of procreation. A committed relationship, particularly between consenting adults, is entirely personal.
The term “homosexual” was first used in 1869 by Dr. Karaly Maria Benkét, a Hungarian physician. In literal terms, it means “of the same sex.” A sexual orientation known as homosexuality is defined as being attracted to people who are acknowledged as being of the same sex. As homosexuality has grown, other names are now used to describe it. It is currently referred to as LGBTQIA+. Lesbian, Gay, Bisexual, and Transgender, Queer, Intersex, Asexual, Ally, and other identities are all represented by this acronym.
Lesbian
These are the being, particularly woman who has an emotional, romantic or sexual orientation towards women only.
Gay
A man who has an emotional, romantic sexual orientation towards men only.
Bisexual/Bi
People may be attracted to individuals of the same or different sex.
Transgender
The term “Transgender” was popularized by activists such as Kate Bornstein, Holly Boswell, Leslie Feinberg, and Riki Wilchins. Person whose gender is not the same as what they were assigned by birth. Trans-women recognize themselves as women but were classified as males when they were born, trans-men recognize themselves as men but were classified female when they were born.
Queer
In the past this term was used as derogatory term for LGBT individuals. The term has now been reclaimed by LGBT young people in particular, who don’t adhere with traditional categories around gender identity and sexual orientation.
Questioning
The process of acknowledging own sexual orientation and gender identities.
Intersex
Person who can have the biological attributes of both gender or whose biological attributes do not fit with societal assumptions about what constitutes male or female. Intersex people may have any sexual orientation and gender identification.
Asexual (or ace)
Person who does not experience any kind of sexual attraction.
Ally
A (typically) straight and/or cis person who supports members of the LGBTQIA+ community.
The (+)-ensures inclusivity of all identities.
1.2 billion young people live in India, one of the oldest civilizations in the world, and 27 lakh of them identify as LGBTQ. One of the main texts for discussions about homosexuality in society and the importance of individualism is John Stuart Mill’s “On Liberty.” Mill emphasized that the state should not meddle in people’s personal affairs. According to him, when same-sex individuals exercise their freedom of choice, no material harm is done to other members of society.
Ancient India did not view homosexuality or sexual orientation as immoral, as the Khajuraho Temple and other historical evidence show. The postcolonial school of thought maintains the colonial mindset from the 19th century. Therefore, the ‘liberal’ arguments for the decriminalization of homosexuality in India instead of returning to the fundamentals of Bharatiya. The result of that “Eurocentric” contemporary global order is the public law that is observed in India.
In addition to the laws, there are additional safeguards found in Article 14 of the Constitution. This clause uses the term “any person,” which refers to every individual without distinction and equally before the law. Discrimination on the grounds of sex, caste, religion, or place of birth is outlawed by Article 15. The state is now able to enact laws protecting LGBTQ minorities, who are now classified as socially and educationally backward classes, thanks to Articles 15 and 16. Part IV of the Directive Principle of State Policy (DPSP) gave the state the authority to advance the welfare of its LGBT citizens and end disparities in access to opportunities, status, and resources.
Hinduism is typically build upon four Vedas — Rig, Sama, Yajur and Atharva. Though none of these ancient Scriptures explicitly mention ‘homosexuality’, the closest reference that is found in the Rig Veda says: “Vikriti Evam Pakriti” which means “what seems unnatural is also natural”. This particular statement from Rig Veda debunks one of the primary arguments in which homosexuality is termed as unnatural.
Mahabharata, Arjuna himself is an personification of gender variance. Arjuna spent twelve months camouflage in the kingdom of Virata, pretended as a transgender dance teacher named Brihannala of the princess Uttara. Arjuna was cursed by the nymph, Urvashi. He would become a ‘Kliba’, a third gender. But Lord Krishna guided him to turn this curse into a blessing during the last year of their exile.
In one of the greatest Indian epics, The Mahabharata, one such figure is Shikhandi who was actually born as a girl named Shikandini to king Drupada of Panchala. Princess Amba who was badly rejected by Bhishma reincarnated as Shikhandini in order to avenge her humiliation and she was predestined to be cause of Bhishma's death.
Since its widely accepted ideas of equality and humanity have been repeatedly undermined by a variety of misunderstandings and misinterpretations by its post-colonial adherents, Hinduism has entirely lost its glory. In 1860, the British government added Section 377 to the Indian Penal Code, outlawing “homosexual conduct.” It was India’s first officially codified law pertaining to homosexuality. Lord Macaulay drafted this law in 1838. Any “unnatural sex” that goes against the natural order is forbidden by this law. The law stated that homosexuality could put gay people in jail. Following an extended period of vigorous demonstrations, the Supreme Court ultimately decriminalized homosexuality in a historic ruling. It is clear from a close examination of Hinduism and Hindu mythology that pre-colonial India was far more accepting of homosexuality.
Attitude of Court Towards Queer Couples
The legal battle for LGBTQ rights began in 2001 with a petition filed by Lawyers Collective on behalf of Naz Foundation challenging the constitutionality of Section 377 in the Delhi High Court. It was first challenged in 1994 by a group called AIDS Bhedbhav Virodhi Andolan, which was working on HIV/AIDS, but their petition was dismissed . The PIL was filed in 2001 challenging Section 377.
In the 2009 case of Naz Foundation v. Govt. of NCT of New Delhi and Others, the Delhi High Court rendered a significant ruling, ruling that Section 377 was unconstitutional. The idea that same-sex relationships would worsen the impact of public health services by increasing the prevalence of AIDS was deemed false.
In 2013, the Supreme Court overruled the Delhi High Court decision in Souresh Koushal v. Naz Foundation. The Supreme Court held that Section 377 could not be struck down and it was for Parliament to decide on decriminalization of homosexuality.
However, in National Legal Services Authority (NALSA) v. Union of India, a bench of Justices K.S. Radhakrishnan and A.K. Sikri of the Supreme Court ruled in April 2014 that transgender people have the constitutional right to self-identify as male, female, or transgender even in the absence of medical re-assignment. The Supreme Court ruled in NALSA that a person’s right to their gender identity and sexual orientation would be included in their rights to life, dignity, and autonomy.
In 2017, big judgment by the Supreme Court came on the right to privacy in K. S. Puttuswamy v. Union of India. The Supreme Court ruled that the rights to life, equality, and fundamental freedoms are inextricably linked to the constitutional right to privacy. According to the Court, having intimate relationships with one’s preferred sexual orientation and gender identity is protected under one’s right to privacy.
In Navtej Singh Johar v. Union of India, the Supreme Court ruled in 2018, that Section 377 was unconstitutional. The Chief Justice presided over a five-judge panel that made this decision. It is thought that Section 377 will permit harassment and exploitation of the LGBT community if it stays in the statute book in its current form.” The distinction between consensual, non-contagious, and harmless adult private-space sexual acts and non-consensual, harmful acts is not made by Section 377. However, there are still no laws that permit same-sex unions. Since the legislation makes no mention of punishment, it is neither legal nor criminal.
Law reform is currently required to protect transgender individuals and grant them full citizenship. Laws allowing for gender reassignment should be passed so that transgender persons can simply change their name and gender in official documents. They would be able to obtain jobs, further education, insurance, and other services as a result. The community has been encouragingly demanding this.
India lacks Anti-Discrimination Law
In some 77 countries, discriminatory laws criminalize private, consensual same-sex relationships – exposing individuals to the risk of arrest, prosecution, — even, in at least five countries, the death penalty. Taiwan was the first country in Asia to pass laws on marriage equality. In 2021, Japan Court ruled that ban to same sex marriage is unconstitutional.
Juvenile Justice (Care and Protection of Children) Act, 2000 covers rehabilitation and adoption of children, does not allow same-sex couples for adopting a child. A single woman is legally able to adopt a child of any gender. Although a single man cannot adopt a girl child; only a male child can, As a single parent, an LGBTQ person applies for adoption; however, the other partner is not legally entitled to the child. These laws give society permission to discriminate against people.
In the USA, Sameer Samudra and his partner, Amit Gokhale, In India, they have been experiencing financial difficulties. Since the Hindu Marriage Act, 1955, does not have a provision for same-sex marriage, they are unable to obtain a life insurance policy or a joint loan to purchase a home because their marriage is not legally recognized in India.
Lately, a 21-years-old LGBTQ activist, Anjana Harish from Kannur district of Kerala anonymously committed suicide on 12th of May in North Goa, under the mysterious circumstance. She was forced against her will by her parents for conversion therapy.
There is also the need for surveillance of violence against Transgender persons. The criminal law on sexual assault in India is still gender determined. It only determine rape and sexual assault where the sufferer is associated as a ‘woman’. Trans persons are also not mentioned under domestic Violence protection legislations such as the Protection of Women from Domestic Violence Act 2006. Thus, transgender persons facing abuse have no criminal remedy against sexual violence.
Conclusion
Legalizing same-sex unions in India will encourage the surrender of orphans’ children and give them a place to live. Due to the great ethnic and social diversity in India, there are no equal rights when it comes to marriage, inheritance, insurance, maintenance, and adoption. The question of whether queer members can benefit from the same rights and privileges afforded to other heterosexual couples is raised by this. On the preservation of marriage, the Supreme Court has differing views. The full realization of LGBTQ rights in India is impeded by deeply ingrained societal stereotypes, discriminatory practices, and familial and societal pressure.
The social reforms for the Queer existent began with the decriminalization of section 377 of IPC that is confirmed in Supreme Court case Navtej Singh Johar case followed by the recognition as ‘Third Gender’ in Supreme Court case (NALSA) National Legal Services Authority V. Union Of India.
D. Y. Chandrachud, the Chief Justice, has consistently advocated for the rights of the LGBTQ community. However, CJI agreed with the majority in Supriyo@Supriya Chakraborty v. Union of India, holding that the Supreme Court could not read provisions into the Special Marriage Act or declare it unconstitutional, as doing so would constitute “Judicial Legislation.” The parliament should establish a special committee to ensure administrative reforms for them, as the court recommended. It has to make way for diversity in both existence and thought. Justice DY Chandrachud urged him to support the LQBTQIA+ community’s legal recognition as a family unit.