NEWS  Despite judicial verdicts, India’s sexual minorities face discrimination in employment, health issues and personal rights.

CONTEXT

• It is of huge concern that in India, the queer community is still a stigmatised and invisible minority, while in the last two decades many nations have witnessed tremendous progress in establishing civil rights for the LGBTQIA+ community.
• This fact is alarmingly incompatible with the country’s living, liberal and inclusive Constitution.

INDIAN CONSTITUTION AND MINORITIES RIGHTS

• The Constitution was conceived by India’s founding fathers as a beacon of fundamental rights, leading once enslaved Indians to the promised land of life and freedom.
• Despite such a liberating Constitution, the Indian state and the law have been abusing, giving many marginalised segments of the citizenry such as the queer community of India the cold shoulder.

PROACTIVE ROLE PLAYED BY THE JUDICIARY

• The meagre gains that the queer community won have been granted by the judiciary and not by legislatures.
• In the tug of war between the demands of the traditional conception of society and the rights of individuals to their identity and dignity, the Supreme Court has come down firmly in favour of individuals.

RELEVANT JUDGMENTS  BY COURTS

Navtej Singh Johar & Ors. vs Union of India (2018)

• In this case the SC ruled that the application of Section 377 of the Indian Penal Code (IPC) to consensual homosexual behaviour between adults was “unconstitutional, irrational, indefensible and manifestly arbitrary”.
• This judgment came as a great victory to the Indian individual in his quest for identity and dignity. It also provided a launch pad for the LGBTQ+ jurisprudence and queer liberation movement in India.

Naz Foundation vs Government of NCT of Delhi (2009)

• In this case,the Delhi High Court’s verdict was a 38th parallel in the law of sexuality and equality jurisprudence in India.
• The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution.
  • It rather creates an unreasonable classification and targets homosexuals as a class.

Despite these progressive judgments of the Supreme Court, full equality is still a dream for the queer community in India.

• The sexual minorities still face a lot of discrimination in the matters of employment, health and personal relationship.
• It is only when these problems are adequately addressed that the LGBTQ+ community will be able to enjoy full autonomy and agency.

LEGAL SANCTIONS POSED BY UNION OF INDIA

• On the contrary to the progressive judgemnts by the judiciary, the Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
• The union have forwarded its stance stating that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry.
• This opposition by the Union came in the response to the Delhi High Court notice to a plea by LGBTQ+ activists and couples who sought recognition of same-sex marriages.

WAY FORWARD

Embracing changing trends:

• Justice Anthony Kennedy of the U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that-
  • the universal human right of marriage should not be denied to a same-sex couple.
• As of 2021, same-sex marriage is legally performed and recognised in 29 countries.
• Hence, there is a need that Indian society and the state should synchronise themselves with changing trends.

Amending Article 15

• In 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
• India can also take the South Africa example and include ‘sexual orientation’ in addition to religion, race, caste, sex or place of birth in Article 15.
• (Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.)

Providing justice to prisoners of sexual conscience:

• In 2017, the UK passed the “Alan Turing law”.
• The law granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts.
• India should also enact a law on these lines to make up for the excesses the LGBTQ+ community has been subject to in the past and present.

Sensitise the general public:

• The SC in Navtej Singh Johar & Ors., had directed the Government to sensitise the general public and officials, including police officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
• School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
• (Heteronormativity is the belief that heterosexuality is the only natural expression of sexuality in our society.)

It is time for change, but the burden should not be left to the political powers. Instead, the onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.

Reference:

1. https://www.thehindu.com/opinion/lead/on-the-margins-with-full-equality-still-out-of-reach/article35008220.ece