lgbt
source: https://time.com/

Introduction

“Why is it that, as a culture, we are more comfortable seeing two men holding guns than holding hands?” -Author Ernest J. Gaines

In several former decades, being gay was something no one wanted to talk about. It was a topic that was considered distasteful and something that society will never accept. People looked at it as a stage one goes through when some unnatural elements 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 LGBTQ+ 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 colourful social order.

Section 377

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. So, this law was nothing but 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 weaponised and structured solely to harass and exploit anyone and everyone who didn’t kowtow with the traditional norms pertaining to sex and gender identity.

Situation after decision

Post the historic decision of the India apex court, some people have very incorrectly assumed that the fight for LGBT+ rights has concluded, but that is far away from the truth.

Despite homosexuality being (JUST) decriminalised, the legal purview towards homosexuality in the Indian society still remains majorly antagonistic and detrimental in several ways. The reasoning of this is that there persists a mammoth gap amongst the statutory and the jurisdictional development of laws catering to the LGBT community in India.

So, even though the Indian Supreme Court through its landmark judgements such as the National Legal Services Authority v. UOI[1], Navtej Singh Johar v. UOI[2] and K.S. Puttaswamy v. UOI[3] has laid the foundation to deliberate upon to provide 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.

Basic Human Rights

The basic rights given to any person in a democratic society includes the right to marriage, right to adoption, right against discrimination, freedom from sexual assault etc. 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 most 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

Right to marry is not explicitly stated in the constitution. But, in the landmark case of Lata Singh v. State of Uttar Pradesh[4], 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 the 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 LGBT+ people robs the same-sex couples of societal and lawful acknowledgements as well as the state-run assistances that wedded 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.

In order to recognize and agree to take same-sex marriages as a general norm, new decrees and enactments will have to conscripted, altered or injected, as the current regulations cannot be considered to be functional in the case of LGBT+ marriages.

Right of Adoption, Guardianship and Surrogacy

Adoption

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 case of Muslims.

Then other than this, there is another law i.e. the Juvenile Justice Care and Protection of Children Act, 2015, read with the adoption regulations of 2017 framed by the Central Adoption Resource Agency (CARA). This act is secular and permits adoption irrespective of the religion of the individual. However, no such mention of a provision disregarding discrimination on the basis of 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 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 with respect 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 377-decriminalisation judgement 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 the homosexual couples are still not to be considered equal before the law.

Guardianship

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 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[5], the court of law gave a very copious ruling and recognised 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 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.

Surrogacy

According to the latest surrogacy bill of 2020 approved in the legislature, unmarried people and LGBT+ partners are verboten to have their own children through surrogate motherhood. Granting that the bill has been approved with an intention to proscribe commercialisation of surrogacy and thwart 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 agendum 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 semblances 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 own 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 wedded under Special Marriage Act, 1954.

Parallel to the other laws, it is understood that the expression “marriage” in the inheritance laws is restricted only to the heterosexual nuptials. Thus, before this law can be functional in the case of LGBT+ partners, it is crucial that the law recognises same-sex marriages. Apart from this, another point is to deliberate is that even though the gender is immaterial and the inheritance transpires on the basis of nearness, yet it is absolutely necessary that the etymological expression should be made completely neutral so that even transgender can be guaranteed to not be discriminated.

Right to have Protection Against Discrimination at the Workplace

LGBT+ workplace review of 2016 exhibited that more than 40% of LGBT people in India have been victims of workplace harassment as a result of their gender/ sexual identity. Many LGBT+ individuals habitually have to shelter their sexual identities for the reason that of the fear of probable discernment 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 LGBTQIA+ 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.

But then again there is one more very imperative dispute that can be advanced here is that the “sexually coloured annotations” or “unsolicited behaviour” may have a different construal and scope in cases of the LGBT+ community. Thus, bearing in mind the fecund transphobia and queerphobia, it is crucial that the gender-neutral harassment laws must also be conveyed with sturdy anti-discriminatory rules to prevent misappropriation of such regulations against the LGBT+ community.

Right to have Protection Against Bullying in Educational Institutions

In a survey steered by the United Nations Cultural Agency on the 400 LGBT+ youth in India, it was discovered that over 60% of LGBT+ youth were victims of bullying in middle school / high school, 43% conveyed occurrences of being sexually harassed in school, with 70% suffering from anxiety and depression and outrageously 33% of them even drop out for the reason that of bullying overall.

The need for awareness

These figures are adequate to direct wariness down someone’s spine as across the country the LGBT+ youth are imperilled to extreme physical, mental and emotional exploitation. This stands in clear violation of equal protection clause and violates Article 14 of the Constitution of India, apart from denying these children 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 young LGBT+ Indians need concrete guidelines and regulations to protect them from bullying.

The humiliation and apathy the LGBT+ people suffer through are so much that threats of rape, incidents of hitting, groping and kicking, being locked in a room, having nasty rumours spread about them or having their belongings stolen are some of the things that LGBT students face on a regular basis, and almost borders it to be a normalized behaviour which shouldn’t happen under any circumstance.

Conclusion

The general law of Human Rights states social norms, tradition, ethos or mores can never be a binding defence to overpower another individual from asserting their fundamental and constitutional rights. If we start mitigating the whole shebang on the basis of 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, it is vital that 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+ people. 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.

Lastly, I will end this article by saying that the LGBT+ community does not comprise of vampires. They won’t bite you and convert you into something you are not. They are more like Hagrid from the Harry Potter franchise. All they can do is introduce you to a new world by letting you know that the magic was in you all along.


Author:

garima tripathi Garima Tripathi | Amity Law School, Noida


References

[1] (2014) 5 SCC 438

[2] W. P. (Crl.) No. 76 of 2016 D. No. 14961/2016

[3] W. P. (CIVIL) No. 494 of 2012

[4] W. P. (Crl.)  208 of 2004

[5] AIR 2015 SC 2569

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