Professional Documents
Culture Documents
equality
Table of Contents
● Introduction
● Background
● Current situation vis a vis Indian law regime
● Same-sex marriage : Global status
● Conclusion
Introduction
Two decades ago in May 1994 when ABVA (AIDS bhedbhav virodhi Andolan)
filed a writ in Delhi High Court, for section 377 to be declared
unconstitutional. No one thought that in a country like India where people
still are not able to accept inter-caste or inter-religion marriages, one-day
Homosexuality will be made legal. On 6 September 2018, modern India and
especially the LGBT community won the colossal battle against the orthodox
society clenched in chains of social culture and societal norms when a
five-judge bench of the Supreme Court consisting of Rohinton Nariman, D.Y
Chandrachud, Indu Malhotra, Ajay Khanwilkar and Dipak Misra ordered to
decriminalize Section 377 of the Indian Penal Code.
The landmark judgment gave the LGBT Community equal status and
recognition for which they fought for decades. Many considered it as a big
win but this was not the end, same-sex marriage is still prohibited. LGBTQ
still cannot get the recognition of law as well as the society for being a
worthy spouse. The project works towards the legalization of same-sex
marriage so that the LGBT people can avail of all the legal rights available to
a normal couple. In India, our constitution and all the personal laws give
every person a person irrespective of gender ‘Right to Marriage’. Currently,
around the globe, there are 30 countries that allow same-sex marriages and
in India, we are still fighting for it. Only passing the judgment that legalizes
same-sex marriage wouldn’t be enough. As in a country like India, marriages
are validated both by legal as well as social recognition. It will take time but
surely one day both our society and the legal system will accept same-sex
marriages.
Background
The first instance of same-sex marriage was reported by the media in 1987
when two policewomen from Madhya Pradesh tied knots with each other by
Hindu rites. Since then the media has reported numerous same-sex
marriages taking place in the country. Few succeeded in their cause while
some were barred by law and others were separated by society. But now with
the changing times, people have become more aware and courageous
enough to accept their homosexual relations openly. Recently famous Indian
athlete, Dutee Chand publicly accepted her same-sex relationship and asked
other members of the LGBTQ community to be more courageous. After the
Navtej Singh Johar v. Union of India case Arundhati Katju and Menaka
Guruswamy, the leading lawyers came up with ‘The Marriage Project’. This
project aims to legalize of same-sex marriages in India.
The question here is, if the legalization of same-sex marriage is not violating
any personal law and the common masses also want it what is the harm in
allowing the union of two people of same-sex? Are we still following the
parameters set by the orthodox society? Things have evolved and the legal
system has also changed with time, then why are we not giving basic rights
to a sexual minority?
Obergefell v. Hodges, in this case, the Supreme Court of the United States
held that same-sex marriage is a result of the right to marry which is also a
fundamental right. Article 15 of our constitution says that the state shall not
discriminate on any grounds of religion, race, caste, sex, place of birth
against any citizen. This tells that such barring of same-sex marriages is a
clear violation of our basic fundamental rights.
Conclusion
The main issue with the legalization of same-sex marriages is that people
start opposing it on the name of various religious and cultural aspects. While
arguing in Delhi HC solicitor-general Tushar Mehta said that same-sex
marriages are against “our law, legal system, society, and values”. It
disappointing that a young democracy is so stiff that it took nearly 24 years
(the petition was filed in 1994) just to decriminalize homosexuality and allow
to people to freely love each other and now it has become so rigid because of
values and society that a group of sexual minorities are not been given the
liberty to marry someone of their own choice. Keeping aside the religious and
political angle the legal system should allow the LGBTQ community to get
their marriage registered under the Special Marriage Act, 1954.
The point here is that the queer community is not limited only to any specific
religion or group therefore, no one will hinder the recognition of marriage on
the name of values and culture if the marriage is registered under the Special
Marriage Act. Mere, changing of law will not give recognition to marriage
acceptance of society is also necessary. The only way through this can be
done is that people should be made aware and should be educated to the
level where they can understand that every person has the right to choose
their life partner. Now, the time has that we equal status, recognition, and
rights for which the LGBTQ community has been fighting.
Introduction
So essentially speaking, the same-sex couples now have the legal right to
cohabit and conduct their personal affairs without any fear of persecution but
are still denied equality of treatment in various aspects. Thus, it is imperative
to take the conversation forward and talk about the various laws that
continue to discriminate against the LGBT+ persons. It
includes anti-discriminatory laws such as no recognition of same-sex
marriages, no rights for adoption, surrogacy etc.
So, the fight for equality continues as there is a long battle waiting ahead,
swarmed with numerous difficulties given that the LGBTQ+ community
remains closed off to civil rights.
Click Above
However, it took more than 70 years and almost 2 decades of the long legal
battle to scrape down this old age law that had become a weapon to harass
and exploit all those who didn’t conform with the traditional binary of
sexuality and gender. But before proceeding to understand how the current
laws in India, even after the scrapping of Section 377, are insufficient in
securing basic human rights to the LGBT+ community in India. Let us first
trace back the history of the LGBT rights movement in India, discussing some
landmark Judgements and their impact on the LGBT Rights movement to
have a comprehensive discussion further.
Though the beginning of the LGBT rights movement can be traced back to
the early 1990s but all the major developments that happened since then
can be discussed in the reference of the following key judgements and their
aftermath.
The police also arrested nine more men associated with “ Bharosa Trust”, an
NGO which was working to create awareness amongst people about safe
sexual practices and STD’s. These people were then accused of running a sex
racket and were denied bail. It was then that The Lawyers Collective, a legal
aid organisation, came forward and established that the charges pressed
against these people were false and finally they were released.
After the Lucknow incident, an NGO Naz Foundation along with Lawyers
Collective went ahead and filed a petition before the Delhi High Court in 2001
challenging the constitutional validity of Section 377 of IPC.
Judgment: When the community, after eight years of a long battle, was just
letting out a sigh of relief, the Supreme Court on 11th December 2013,
overturned the judgment of the Delhi High Court and re-criminalised
homosexuality. A bench of Justice GS Singhvi and Justice SJ
Mukhopadhaya Court held that LGBT+ persons constituted a ‘minuscule
minority’ and therefore did not deserve constitutional protection and further
observed that Section 377 of IPC did not suffer from the vice of
unconstitutionality.
Aftermath: But the silver lining was that the Suresh Kumar Koushal V. Naz
Foundation judgement, instead of putting a halt on the LGBT movement has
rather rekindled a new wave of activism in India. The Supreme Court’s
iconoclastic judgement faced immense criticism from every nook and corner
for erasing basic human rights of homosexuals. The result was that public
discourse about LGBT rights witnessed an upsurge in India.
But the 2014 Judgement of the Supreme Court brought in a new ray of hope
and euphoria for these transgender people as for the first time in the history,
they were recognised as the third gender.
Issue: In National Legal Services Authority v Union of India, the
Supreme Court had to decide upon the question of whether there was a need
to recognise the hijra and transgender community as a third gender for the
purposes of public health, education, employment, reservation and other
welfare schemes.
Judgement: The Court finally gave its verdict on 6th September 2018 and it
can be summarised as follows:
The trans community in India has vehemently rejected the bill citing
following provisions of the bill as they infringe their fundamental rights and
do not comply with the NALSA judgement.
Therefore, it can be concluded that on one hand where the courts are taking
progressive steps to empower and uphold the rights of LGBTQIA+
community, on the other hand, the legislature is invalidating the same rights.
It is high time that the government should acknowledge and frame laws in
accordance with the landmark judgement else the LGBTQ community will
continue to face setbacks in their struggle to have the same rights as those
available to heterosexual people.
These civil rights include the right to marriage, right to adoption, right to
surrogacy, right against discrimination, freedom from sexual assault etc.
Same-sex Marriages
Special Marriage Act of 1954 lays down provision for people of India and all
Indian nationals in foreign countries allowing them to marry irrespective of
their faith, caste and religion. So, while the marriage laws in India have
evolved progressively with time but there is no such provision for the
same-sex couples to marry, which seems reasonable also considering it’s
only been two years when the Supreme court decriminalised homosexuality.
However, sooner or later the legislature has to deal with these questions.
There are several petitions on same-sex marriages pending with the courts.
So the next onus on the LGBT activists is to encourage and demand from the
government to formulate legislation permitting LGBTQ couples to marry,
adopt and inherit their spouse’s property. However, the fact is that although
the Union government, in 2018 left it for the court to decide on the legality of
section 377, but has also indicated that it is likely to oppose any petition for
same-sex marriage.
Relevance of marriage
Marriage has been one of the strongest and most important institutions of
human society. With time it has evolved and changed its forms but what
didn’t change is that marriage continues to be a universal fact. This has more
relevance especially in the case of India, where the concept is so deeply
entwined that everyone is expected to be a part of it.
However, this reason cannot be a valid justification to deny the whole LGBT+
community the right to marry just because they have a different sexual
orientation from others. Apart from this, it also raises another very pertinent
question that whether the opinion of the majority holds more significance in
the eyes of law that it can deprive an individual of the personal autonomy
and basic right to his/her own life.
Further, it’s also very important to note that most such same-sex marriages,
especially lesbian marriages, have largely happened between small-town,
lower-middle-class or between non-English speaking women who are not
even connected to the LGBT movement.
Personal Laws and Same-sex marriages
Family laws in India are categorised under two heads i.e. personal and
secular laws:
1. Secular laws are applied to all the citizens regardless of their faith,
caste etc. ie. Special Marriage Act.
2. Personal laws differ from religion to religion. There are primarily four
personal laws governing marriages in India.
Jainism and Buddhism: In Jains, the stance is very clear. They discourage
all kinds of sexual activities that are not done for the purpose of reproduction
which means apart from homosexuality, even premarital sex, heterosexual
sex or sex for fun is also not allowed.
While Buddhists say that till the time any sexual activity is consensual and is
out of affection it is permissible. Dalai Lama also has a similar stance that
homosexual sex is allowed provided nobody is harmed and it’s completely
consensual.
Sikhism: In Sikhism, since the religious texts remain silent on this aspect
they don’t hold any same-sex marriages in their gurudwaras.
Further, this also must be viewed in the light of the fact that a number of
previous attempts to enact uniform civil code (UCC) were met with deep
resistance in India as minorities fear that UCC will restrict their freedom of
religion. This is primarily the reason why the law commission in August 2018
rejected the UCC as a recommendation.
Recent developments
In the Navtej Singh Johar judgement, Justice Chandrachud observed that the
manner in which an individual wants to exercise intimacy is beyond the
legitimate interest of the state. But despite granting everyone the right to
intimacy the judgement did not direct the government to frame or amend
laws to recognize such alternate forms of union or otherwise. As essentially
speaking when Justice Misra recognised the right to the union under Article
21, the word “union” was used in the context of companionship and not in
the reference to marriage.
It is also important to point out that the LGBT rights activists have suggested
various reforms to the law commission to make the family laws inclusive for
same-sex couples as well but the same has not received any due
consideration from the law commission.
However, with the Supreme court decision in NALSA judgement and more
recently in Navtej Singh Johar judgement, some of these restrictions can now
be potentially challenged under the robust framework of equality and
non-discrimination that has been recognised.
So, what can be a more practical solution in the status quo is to either
amend, modify or make the language of the existing laws neutral to be
inclusive of LGBT+marriage, or the second option is to legalise an alternative
form of marriage. Therefore, in order to understand the practicability of this
concept, let’s discuss what are the major problems that will arise in
implementing these suggestions and what can be the possible solutions.
Further, If the meaning of the terms husband and wife are not properly
interpreted then it will result in ambiguity with regards to the application of
the law. For instance, Section 27(1-A) of the Special Marriage Act,
1954 provides the grounds on which a wife can take divorce but in case of
LGBT marriages there is confusion regarding the term wife.
Therefore, Section 3 of the Act i.e. definition clause can be reinterpreted to
remove the ambiguity in LGBT marriages.
iii) Sodomy
In the case of the Special Marriage Act ( Hindu Marriage law and Parsi law as
well), sodomy is a ground for divorce. But after striking down of Section 377,
these terms need to be redefined.
Alternative model
Since heteronormative ideas are so deeply embedded in the institution of
marriage, thus, there are suggestions according to which instead of adding or
substracting in existing laws to make them inclusive of same-sex marriages,
rather we need to reconsider our definition of family to include families of
choice with greater levels of flexibility so those who opt out of traditional
family structure may not be disadvantaged.
Adoption
In India, adoption is governed by both secular as well as religious laws. In
the case of Hindus, it is governed by Hindu adoption and maintenance Act,
1956 while there are no personal laws regarding adoption in case of Muslims,
Christians, Parsis etc.
But apart from this, there is another law i.e. Juvenile Justice care and
protection of children Act, 2015 (JJ Act), read with the adoption regulations
of 2017 framed by the Central Adoption Resource Agency (CARA). This act is
secular and allows adoption regardless of the religion of the person.
Regulations on Adoption
Adoption regulation
The Adoption Regulation Act is much more stringent in terms of regulations
than the HAMA. Similar to the case of HAMA, here also the single men and
women can adopt as long as they are mentally, emotionally and financially
stable and are not suffering from any life-threatening disease. Apart from
this, the act does not allow a single man to adopt a girl child but a similar
restriction does not apply to a woman and she can adopt a male child. This is
different from HAMA where even a single male can also adopt a girl child
provided there is an age gap of twenty years between the two.
There is no denying the fact that adoption is a complex issue and even
heterosexual couples also have a hard time in adopting a child considering
the anti-trafficking laws. But the fact is that at least a heterosexual couple
can apply for adoption while the same-sex couples are not even allowed to
adopt.
Guardianship
Overview
Guardianship essentially refers to a set of rights and obligations that an adult
has over the personhood and property of a minor. Guardianship and custody
are very closely related. In India, guardianship in case of Hindus is governed
by Hindu Minority Guardianship Act 1956 (HMGA) while the Guardianship and
wards Act 1956(GWA) is a secular law that is applicable to all the citizens.
Background
In India, traditionally only the father was considered as a natural guardian
and had the sole right over the child. Further, as per Section 6 of the Hindu
Marriage Act, the mother can have the guardianship right over the child only
after the father.
Recent developments
In 2010, the parliament amended the law to provide equal guardianship
rights to both mother and father. In 2015, in the case of ABC V. NCT of
Delhi, the court gave a very liberal judgement and recognised the
guardianship rights of the unwed mother and further went on to stipulate
that it’s not essential for the mother to disclose the name of the father.
Heteronormative Presumptions
Though the language of the act is gender-neutral, it is premised on the
notions of the gender binary. Thus, the existence of LGBTQIA+ parents or
transgender parents where the gender is not clear, the application of these
laws will pose some problems, hence it is important to define such terms.
Although the bill has been passed with an aim to prohibit commercialisation
of surrogacy and prevent exploitation of mother and child, instead of fulfilling
the objective it has been reduced to an ”inflexible” piece of legislation that
reiterates the notions of “archaic family system” which is not in sync with the
present reality.
Criticism
The bill is worthy to be criticised as it excludes a vast section of society from
being eligible to have a child through surrogacy. The bill prohibits surrogacy
only on the basis of the marital status or sexual orientation of an individual
and also imposes extreme conditions even in the case of heterosexual
couples. It suffers from various loopholes that are needed to be addressed as
the present law is discriminatory against a lot of people.
Inheritance laws
Background
Inheritance and succession laws in India are governed by a mix of personal
laws and secular laws. Hindus are governed by Hindu Succession Act, 1956,
while Muslims and Parsis have their own customary laws and then there is
an Indian succession Act, 1925 which after a series of amendments now
applies to all the Indians who are married under Special Marriage Act, 1954.
Case laws
In 2016, Himachal Pradesh High Court in the case of Sweety(eunuch) V.
General Public the court recognised the right of the appellant sweety “ guru”
over her deceased chela’s property following the “guru-chela parampara” in
the Hijra community. The court recognised the appellant as the family of the
deceased and her legal heir. This was in line with the 1990 judgement of the
Madhya Pradesh High court in the case of Ilyas Ors. V. Badshah where the
court, despite knowing the religion of the deceased, held that as per the
custom of the Hijra community the property shall not be willed away outside
the Hijra community.
However, what is unfortunate that though there have been constant demands
about the legal recognition of Hijra families especially after the NALSA
judgement, the law continues to undermine the legal existence of such
families firstly in the subsequent versions of the Private member bills in 2014
and then after the passing of the Transgender Persons (Protection of Rights)
Bill, 2019.
In the instant case, Sabi Giri, ( was earlier a boy named Manish Kumar Gir)
who suffered from the Gender dysmorphia and when underwent a sex
change operation was dismissed from the navy. Military in defence said that
the present rules and regulations do not allow the sailor’s continued
employment in the navy owing to his altered gender status.
The case was argued in Delhi High court wherein the court suggested the
Navy find an alternative job for Giri. Thus despite having no proof of Sabi not
being able to do her job after her sex reassignment surgery she was thrown
out of her job and was rather offered a job as a data entry operator. Apart
from this, the petitioner also testified against the discrimination meted out to
her during the course of her employment, highlighting the dark truths about
work-place discrimination and the lack of awareness on the issue of
transgender rights.
There is another very point to consider here, that the plight of the
transgender people is not only restricted to discrimination at workplaces but
also extends to the access to education, schooling and vocational training.
Though essentially speaking Section 14 of the Bill facilitates the appropriate
Government to formulate welfare schemes and programmes for livelihood of
transgender persons including their vocational training and self-employment.
LGBTQIA+ community
Apart from facing regular discrimination and harassment at the workplace,
there are some other reasons also to substantiate that the present
employment laws are not inclusive of the LGBTQIA+ community.
The provisions which are confined to the gender binary exist not only in
these discussed laws but extend across a range of other employment and
Labour laws as well.
Maternity Benefits
At present Maternity Benefit Act of 1961 provides maternity leaves and
benefits only to the cis-gendered women who give birth, adopt or rely on
surrogacy to have a child. Essentially speaking there are two implications of
this law.
1. Firstly, it reiterates the same archaic ideas and notions that it is the
sole responsibility of the mother to take care of and nurture the
child while the father can be waived off this duty.
2. Secondly, it does not take into cognizance the fact that there can be
a possibility of alternate families such as the LGBTQIA+ families.
But there is another very important argument that can be advanced here i.e.
the “sexually coloured remarks” or “unwelcome behaviour” may have a
different interpretation and scope in the case of LGBTQIA+ community. Thus,
considering the rampant transphobia and homophobia, it is essential that the
gender-neutral harassment laws must also be accompanied with strong
anti-discriminatory policies to prevent misuse of such laws against the
LGBTQIA+ community.
Organisations can formulate their own policies
Although the amendments in employment and labour laws to make them
inclusive of LGBTQIA+ community is the need of the hour. However, a more
structural and substantial change cannot be realised until and unless the
private and public organisations are eager to shape policies and rules to
make the workplaces LGBTQIA+ inclusive.
These may include making policies such as granting equal benefits to LGBT+
couples as those available to heterosexual partners, adopting comprehensive
anti-discriminatory laws, supporting LGBT+ employee support groups,
granting leaves for gender-conforming processes, and organising awareness
and sensitisation programs.
Summary
Therefore it can be summarised that:
Consequences of bullying
Unfortunately, unable to cope up with this trauma, some drop out of school
or develop deep psychological problems and some get so affected that they
are driven to commit suicide as happened with a 15-year-old boy in
Tiruchirapally. There are a number of cases of such homophobic and
transphobic violence- often acutely reported, even when gets reported yet
receives no due attention from the media, authorities, psychologists or the
government combined with inadequate or non-existent support and redress
systems.
Suggestions
i) Sex Education
Status quo:
The need for sex education: It is unimaginable to think about shaping an
open positive discourse about LGBT+ rights in the school setting, considering
the historical attitude that Indian schools have displayed in relation to doing
anything that is related to sex. Further, what should be noted is that
discussions on sexual awareness and education among youth are not only
avoided but rather often discouraged and receive a lot of backlash and
criticism.
The sole step that the schools have taken so far is restricted only up to
holding discussions on good touch and bad touch to prevent child sexual
abuse. Thus in the status quo, school continues to consider homosexuality a
disease and sexual relationship as “immoral” reiterating those same old age
notions of prejudices and ignorance.
i) Status quo
The only step that has been taken in this regard is that CBSE has issued
certain guidelines to all its affiliated schools to follow
This includes forming a committee to deal with ragging and bullying and to
punish the bullies with measures such as giving them a written warning and
may also read to rustication. It also directs schools to form committee
members including vice-principal, a senior teacher, counsellor, doctor,
parent-teacher representative, legal representative, school management
representative and peer educators.
However, despite such guidelines and policies, most of the universities across
the country have failed to take note and have done very little to check
harassment of LGBT students. Therefore, it is essential that all universities
incorporate anti-ragging policies in their prospectus with regards to the
prohibition of discrimination based on sexual orientation or gender identity.
Conclusion
It is submitted that although the landmark 2018 court ruling and 2014
NALSA judgment were a huge leap in the advancement of LGBT+ rights
movements in India. But still, the LGBT people in India are not equal and
don’t have the same rights as those available to a heterosexual person.
Further, they are still subjected to violence, discrimination in all spheres of
life.
It is very important to educate people about LGBT rights. Human rights are
natural rights which are inalienable, indestructible and are conferred upon
everyone since birth. It is essential that people take note of the fact that
homosexuals are not sick, they are not aliens, their sexual orientation is
perfectly in tune with the dictate of nature.
The universal law of Human Rights states social norms, custom, culture or
traditions can never be a valid justification to suppress another individual
from asserting his/her fundamental and constitutional rights.
So, it is essential that the government must wipe away its conservative
nature and should take concrete steps to eliminate the stigma, discrimination
and abuse surrounding the LGBTQIA+ people. It is high time the government
should formulate new laws or amend existing laws on marriage, adoption,
guardianship, inheritance educational institutions, employment, healthcare
services etc for education, social security and health of LGBT+ people with
special focus to Transgender Persons.
It will lead to greater inclusiveness and will help in bringing the LGBTQIA+
into the mainstream of society and can go a long way in ‘transforming our
nation sustainably into an equitable and vibrant knowledge society’
Lastly, I will conclude this article by saying that until and unless the
government gives the LGBTQIA+ people in India an equal status, just and
the fair struggle for social recognition by LGBT+ will go on.
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