Same-Sex Marriage- An unfinished journey
The author, Mr.Apurb Lal, is an eminent practising advocate at the Supreme Court of India
The notions regarding the LGBTQIA+ community have been bifurcated into two groups- its advocates and opponents. As the Supreme Court of India in its final verdict, by the ratio of 3:2, refused to legalise same-sex marriage in India, the 366-page judgment stands as a strong and clear indication against the notion of gender queerness as a foreign and or urban-elitist concept.
The contention among the judges was regarding the extent to which the law should address adoption rights and the right to form civil unions for members of the LGBTQIA+ community. The difference in opinion among the judges, with the majority opinions held by Justices S. Ravindra Bhat, Hima Kohli, and P.S. Narasimha, and the minority views by Chief Justice Chandrachud and Justice S.K. Kaul, suggests a division on the scope of legal recognition and rights for LGBTQ+ individuals revolving around the level of legal protection and recognition that should be afforded to same-sex couples, particularly in the areas of adoption and civil unions.
The majority opinion partly advocates for a more restrained approach, while the minority views, as represented by Chief Justice D.Y. Chandrachud and Justice S.K. Kaul, lean towards a broader interpretation of rights and legal recognition for the LGBTQIA+ community.
While the Chief Justice of India D.Y. Chandrachud observed how “it is not queerness which is of foreign origin but the many shades of prejudice in India which are remnants of a colonial past.”
Justice Sanjay Kishan Kaul replied in affirmative to the existence of non-heterosexual relationships as the very part of the “pluralistic social fabric of the country” as well as an “integral part of the Indian culture”.
The decriminalization of homosexuality in 2018, with the Supreme Court striking down Section 377 of the Indian Penal Code, marked a significant milestone for LGBTQIA+ rights in India. The mention of the Personal Data Protection Bill introduced in 2020, which recognizes the right to privacy as a fundamental right, adds an interesting dimension to the discussion. The right to privacy has played a crucial role in the legal arguments for LGBTQ+ rights, including the decriminalization of homosexuality. Legal experts considering this provision as a potential argument for the legalization of same-sex marriage, highlight the evolving nature of legal discussions surrounding LGBTQIA+ rights in India.
The historical context provided, tracing LGBTQIA+ rights back to the colonial era and the introduction of Section 377 in 1860, underscores the long-standing struggle for recognition and equality. The persistence of discriminatory laws even after India gained independence in 1947 emphasizes the deeply rooted nature of the legal challenges faced by the LGBTQIA+. While there have been significant legal victories, with the lack of legal recognition for same-sex marriages and the ongoing societal challenges, the journey towards full equality for the LGBTQ+ community in India continues.
Five years after the Apex Court decriminalised homosexuality in the case of Navtej Singh Johar vs Union of India 2018 INSC 790, overturning Suresh Kumar Koushal & Anr vs Naz Foundation & Ors (2013) the five-judge bench’s observations highlighted the inherent prejudices and state discrimination the LGBTQIA+ community faces based on the sexual orientation and preferences. The step was undoubtedly a significant victory, marking the decriminalization of homosexuality as a crucial step towards ending discrimination and promoting equality.
However, the subsequent acknowledgement that despite legal victories, the LGBTQIA+ community continues to face substantial challenges is crucial. Discrimination and violence against LGBTQIA+ individuals persist in Indian society, indicating that legal changes alone may not be sufficient to transform societal attitudes and behaviours.
The specific mention of transgender individuals facing multiple forms of discrimination, including limited access to education, employment, healthcare, and housing, underscores the intersectionality of challenges within the LGBTQIA+ community. There’s also the helplessness of queer couples who are unable to legally form civil unions which is a pre-requisite to adopt children, being yet another unfair treatment faced by the community. It highlights the importance of addressing not only legal issues but also broader societal and systemic barriers to achieve comprehensive equality.
The present verdict unanimously quashed the argument put forward by the Union Government as regards the so-called “alien and elitist nature of queerness”, by acknowledging that the atypical gender identity and orientation as an expression have always existed across boundaries and backgrounds, however, it merely the variation in the visibility of the expression, which is no manner implies that queerness is either an urban or an elitist concept.
CJI Chandrachud’s perspective represented a progressive and inclusive understanding of Indian identity and the rights of sexual and gender minorities. By defining ‘Indian’ as something present in India, practised by Indian citizens, and not limited to a specific time frame, the notion that homosexuality or gender queerness is ‘not’ native to India has been challenged. The emphasis on the equal Indian identity of sexual and gender minorities, comparing them to their cisgender and heterosexual counterparts, and asserting that these individuals are as Indian as anyone else, the court reinforced the idea that diversity and inclusion are integral to the social fabric of the nation.
While the judgement couldn’t bring in marriage or adoption rights to queer couples, it does recognize and acknowledge the legitimacy and genuineness of the LGBTQIA+ community’s struggle for equal rights within the cultural and legal context of India which deserves consideration and respect, reflecting a commitment to dismantling biases, promoting inclusivity, and acknowledging the rights of the LGBTQIA+ community as an integral part of the Indian fabric. It encourages a more inclusive and empathetic approach towards issues of equality and human rights within the legal and societal framework of the country.
The recognition that legal victories, such as the decriminalization of homosexuality, do not automatically translate into societal acceptance and equal treatment is a vital aspect of understanding the ongoing struggles faced by the LGBTQIA+ community in India. The lack of legal recognition for same-sex marriage further compounds these challenges, denying LGBTQIA+ couples not only legal and social benefits but also exposing them to increased risks of discrimination and violence.
This situation emphasizes the need for a holistic approach to LGBTQIA+ rights in India, addressing legal, social, and cultural dimensions to create a more inclusive and accepting environment for the entire spectrum of the LGBTQIA+ community. While the centre’s argument regarding the uncertainty and unpredictability of gender fluidity and similar issues, and the consequential difficulty in formulating varying laws as required creates a challenge, it also points to the importance of ongoing advocacy and awareness efforts to bridge the gap between legal progress and societal change in terms of balancing the needs of the majority and minority. As the Apex Court has left it to the Parliament to set up a committee and look into the needs that ought to be addressed, one can’t be certain as to the rainbow of hope that may be fetched for the LGBTQIA+ community, even if it takes years.