This article revolves around the various issues homosexual couples face and how India’s legal system affects it. Homosexuals have faced discrimination for a long time, and after the decriminalising of section 377, the Centre denied recognising homosexual marriage, which pleaded in the Delhi High Court.
LGBTQ+ or GLBT is an abbreviation lesbian, gay, bisexual, transgender and queer. Anybody is not heterosexual or non-cisgender will fall under this community. It focuses on all the other spectrums of sexuality and gender. This community has been fighting for basic human rights which are enjoyed and taken for granted by heterosexuals. This community is a minority and are often ignored in the society and are left unheard. They are prone to various kinds of violence and harassment which they face on a regular basis. Some of them are too scared to come out due to the fear of being judged and fall under the prey of negative stereotypes labelled in this community. Countries like Japan, China and other various countries around the world has also depicted proof of the existence of homosexuality in the past.
The earliest same-sex relationships come from Ancient Greece and Phrygia. Later, in Roman-Republics, Ostraca dating from the Remesside Period drawings were found depicting homosexuality. Even countries like China. Japan, Israel and Persia are known to be practising homosexual relationships. Homophobia started during the High Middle Ages and got worse in the renaissance. The first homosexuality revolution was believed to be by Aristocats in Florence on August 31st 1512. The migration of homosexuality started migrating from Colonial America, and homosexuality was soon illegal in any Puritan country. The Renaissance saw intense homosexual oppression by the Roman Catholic Church. It radically passed from being completely legal in most of Europe to incurring the death penalty in most European states.
In Ancient India, the lines demarcating from homosexual to heterosexual were blurred until the 18th century when British colonial rule started. The Special Marriage Act of India 1954 states that a female should be 18 and a male should be 21 to get married. The person should be mentally sane to get married. Marriage is a union of two individuals, and they have access to various rights, which is necessary to maintain a relationship for the long term. In India, homosexuals are stripped from those rights. Even after taking the progressive state of the annulment of section 377 and decriminalising homosexuality, it did not legalise marriage; In a recent case, the centre announced that same-sex marriage is against Indian values and opposed to recognising it. Equality is a fundamental right of this nation, and not legitimising same-sex marriage opposes the idea of basic fundamental rights. Legalising same-sex marriage will allow two individuals to get married under the Special Marriage Act. Marriage is an essential element; homosexuals not being allowed to get married legally means that they are;
Marriage rights regarding matters of taxation insurance, share in family property, jointly adopting a child, making medical decisions for the significant other or being listed under family employee benefits. Especially during this pandemic, if two partners live together and somebody happens to fall sick, they would deprive their significant other of making any decisions. This raised various questions about the position of homosexual couples after ruling Section 377 down.
In ancient India blurred the lines demarcating males from females and homosexuals from heterosexuals. Historical, literary evidence indicates that homosexuality has been prevalent across the Indian subcontinent throughout history and that homosexuals were not necessarily considered inferior in any way. The Colonial British rule introduced Section 377 on the grounds of India in 1861, where homosexuality was a crime under the “unnatural offences” and inter alia. This section caused an infringement under Article 14, 15, 19 and 21 of the Indian Constitution, which are fundamental rights and envisages equality. Navtej Singh Johar vs The Union of India was a landmark case that decriminalised homosexuality.
This case was one of the most important cases in Indian history. The prior cases which took place before this landmark judgement are the ones that shaped this case. The first precedent was Naz Foundation v. Govt. of NCT, Delhi, followed by Suresh Kumar Kaushal v. Naz Foundation. Naz Foundation was an NGO dedicated to HIV-AIDS prevention that filed its first case seeking justice for the LGBTQ community by the annulment of Section 377. The High Court dismissed the petition due to the no locus standi of the petitioner. They appealed to the Supreme Court, where the apex court stated that criminalising homosexuality under the grounds of public disgust is unreasonable. Section 377 was declared unconstitutional because it was against the basic fundamental rights laid down by the Indian Constitution.
Suresh Kumar Kaushal filed a case challenging the judgement of the apex court legalising homosexuality. The petitioner declared that the Naz Foundation documents were non-reliable and the apex court cannot take over the legislature’s work. It also mentioned that Section 377 was gender-neutral and did not impose any violation of the fundamental rights. In this case, Section 377 was declared constitutional again.
The main issues of the case were:
- Whether the rationale adopted in the Suresh Kaushal judgement was proper or not?
- Whether section 377 violates articles 14 and 15 of the constitution?
- Whether section 377 violates the right to privacy under article 21?
- Whether section 377 has a ‘chilling effect’ on article 19 (1) (a) by criminalising gender expression by the LGBT community?
Navtej Singh Johar v. Union of India is a landmark judgment by the Apex Court and the initial, founding steps towards alleviating the legal position of homosexual adults. The Supreme Court of India, in September 2018, read down Section 377 of the Indian Penal Code while reversing the earlier decision of the Court in Suresh Kumar Koushal. While doing so, the Court recognised the Fundamental Rights possessed by the homosexual and the LGBT community. The judgment came as a moment of celebration for numerous individuals and groups who had been advocating equal rights for homosexuals for a long time now. For a long time, they resided in a judgemental society that became toxic for the community and made it harder to live everyday life without repressing their true selves. It violated the basic fundamental rights, and preserving them is the nation’s duty. Even though the community is believed to be a minority in this country, Accusing them to be criminals and being discriminated on every field just because of their sexual orientation was unreasonable and violative to the Indian Constitution. India doesn’t support any majority rule, and every section of the society is entitled to fundamental rights. The infringement in the right of privacy where unreasonable interference of personal life was evident in this section. In light of this fact, decriminalising homosexuality proved the nation to be democratic and was one of the most landmark cases in history.
This judgement indicated the shift of the Indian society from an archaic to a pragmatic one. It was one of the most historic decisions for the LGBTQ community in India. This judgement allowed the community to express themselves freely and broke the chains of hiding their true identity from the society where they were viewed as criminals. However, there is still a long way to go; homosexual marriage is still not recognised legally in the country, and it took no steps to enforce the rights and protect them from discrimination. Equality is one of the basic fundamental rights, and nobody should fall under situations where they have to lock their identities away.
The sanctity of marriage was questioned by the centre who denied acknowledging the plea of legalising same-sex marriage, which arose in Delhi High Court. The Centre stated that marriage in India depends, “age-old customs, rituals, practices, cultural ethos and societal values”, and the annulment of Section 377 was merely decriminalising involved a particular human behaviour with no intentions legalising homosexual marriage. In response to the fundamental rights of Article 21, the centre responded, “The fundamental right under Article 21 is subject to the procedure established by law, and cannot expand the same to… include the fundamental right for same-sex marriage to be recognised under the laws… which mandate the contrary”. According to the centre, the family unit concept clashed with same-sex marriage ideas, which is not morally accepted by society.
A lot of issues are faced by societies as they are labelled with stereotypes. They face issues on different platforms like where they are stripped of basic rights. They are subjected to bullying and verbal abuse in our community which makes it even harder for them to accept themselves and come out. Coming out is one of the greatest challenges they face, as it is being gay, which is still considered unnatural in our society. Physical violence is visible in our community where if gay people are beaten up if they are spotted in public. Homophobia is sculpted in our society and it is engraved in people’s mind and it is really hard to be a progressive society and develop the country if the mindset of people is not changed. Being a homosexual is still considered a mental illness and gay conversion therapies still exist where inhuman methods are applied to change their own identities. People also face issues in their family, they are prone to several family conflicts where they end up getting kicked out of their houses in the end because they do not get accepted for who they are. The rise of these issues in families result in fear which leads to mental illness among homosexuals. In a various research, it has been seen that 61% have depression, 45% suffer from PSTD and 36% have an anxiety disorder. They are also likely to attempt suicide for not being accepted in society. They face discrimination in workplaces too where they don’t get jobs because of their sexual orientation. They also face harassment and other sorts of abuse which makes it harder for them to work at their full potential. Laws are implemented to protect women and other people to protect them from harassment but until now no such laws has been considered seriously to protect these individuals. In Islamic countries being a homosexual is a heinous crime that can get them imprisoned or even lead to death penalties. In countries like Russia, it is illegal for homosexuals to get married.
Sexual assault among homosexuals is ignored in this country as people don’t even think it is possible. Most professionals are associated with male-female rapes and not well educated enough to deal with female-female rapes. There is a lack of ways to provide evidence of such rape case and they are left ignored in our society. The LGBTQ people are suffering from poverty, marginalisation and stigma which puts them at a higher risk of getting assaulted. Society labelling it as unnatural makes it an ordeal for them to seek justice against horrible crimes like sexual assault. People need to be more accepting and inclusive to maintain a peaceful society.
The community faces discrimination in various fields, which heterosexuals take for granted. The World Bank estimates that homophobia costs India $31 billion a year in lower educational achievement, loss of labour productivity and the added costs of providing health care to LGBT people who are poor, stressed, suicidal or HIV-positive. Building health care centres and gay conversion therapies also cost money which can be used for other uses.
Gender neutrality and acceptance can be a solution to this problem. One should be respectful of the community and not pass comments and erase the stigma against the LGBTQ community. Being gay is still labelled as a mental illness and not appropriate. Homosexuals are a minority in the community and that is why it is often left ignored. Not giving them equal rights and opportunities to be themselves and serve society is a loss to society itself. Being who you are is a choice and it shall not be stripped from a human.In Indian politics, barely any lgbtq activists participate and play a very small role in Indian politics. Living under the fear of constant threat is something to which nobody should be exposed to. The concept of gender and the stereotype of a man being with a female is one of the major barriers for the community and it can only be achieved by changing your mindset.
The Indian Constitution is one of the biggest democracies in the world right now which is populated with people belonging from different cultures and types. The Indian Constitution is flexible and is supposed to change following time and the needs of society. Various countries have already legalised same-sex marriage, where morality was one of the main arguments by the opposition party. Taiwan became the first country in Asia to legalise same-sex marriage on 24th May 2017. According to the centre, the Indian culture does not recognise same-sex marriage. People evolve, and cultures evolve too. The laws should evolve along with the needs of the people.
The LGBTQ community has been fighting for their rights, and all they ask for is to enjoy the fundamental rights that any other average couple or married couple have access to. They are often threatened and are stripped from basic human rights and face discrimination in society. Deciding whom to marry is a personal choice, and it should not interfere in any way. They are providing equal rights and restoring peace. Society should start accepting individuals as they are and refrain from being hostile towards them for their identities and choices. Love has no limits, and silencing people is living in fear creates a toxic environment. The world should be a free, non-judgemental space for everybody to reside in peacefully.
- Navtej Singh Johar vs. Union of India to be found at https://indiankanoon.org/doc/168671544/
- Naz Foundation v. Govt. of NCT, Delhi to be found at https://indiankanoon.org/doc/100472805/
- Suresh Kumar Kaushal v. Naz Foundation to be found at https://indiankanoon.org/doc/58730926/
- More information on LGBTQ Human Rights to be found at https://www.hrw.org/topic/lgbt-rights
- Reference was also taken from Jstor (https://www.jstor.org/)
- Books on LGBTQ : LGBTQ Youth and Education on Policies and Practices by Cris Mayo.
Author: DEVESHI BOSE.