In 2018, the Supreme Court's decision to decriminalise gay sex was the first guiding principle in a landmark progressive judgment welcomed by most sections of the society. Regardless, inequality and prejudice are still existent in the society towards the LGBTQI+ community.
What Is The 2018 Judgement All About?
On September 6, 2018, the Supreme Court struck down the oppressive Article 377 from the Indian Penal Code (IPC). There were four independent but concurring judgements given by Chief Justice Dipak Misra, and Justices RF Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra.
The 158-year-old colonial-era provisions of Section 377 of the IPC, which criminalised gay sex was termed 'irrational, indefensible, and manifestly arbitrary' by the apex court. Section 377 declared "carnal intercourse against the order of nature" punishable by imprisonment for life. In this judgement, Section 377 was considered to be violative of the right to equality and dignity. The judgement further added that "LGBTQ possess the full range of constitutional rights, including sexual orientation and partner choice, LGBTQ has equal citizenship and equal protection of laws."
While the judgement did make a difference in the lives of transgender persons and others who were considered criminals for their sexual orientation, there is still a lot that needs to be done to bring about equality.
Does Legalisation Mean Acceptance?
The answer to the above question is a blatant 'no' in every sense. Even today, individuals from the community live in fear of revealing their identity to their loved ones, let alone the general public. Even today in Indian society, the existence of different sexualities and gender identities remains intolerant and ultra-conservative, especially in rural India, where homosexuality is considered unnatural, discriminating against many transwomen and transmen. There are cases of assault and discrimination registered frequently in villages and small cities.
Even today, people from this community feel closeted and are regularly put at a disadvantage. In fact, there are even "conversion therapies" that seeks to "cure" homosexuality. Recently, the Madras High Court banned attempts to "cure" the gender identity or sexual orientation of people as part of sweeping orders to sensitise state agencies and protect the rights of LGBTQIA+ communities.
It continues to be a shameful affair in many households and families. While discrimination remains highly prevalent, people from this community are looked down upon and treated differently. They are discriminated in every sphere starting from jobs to even finding a house to rent.
It is simply because individuals from this community prefer sexuality that differs from what would appear to be the 'norm' that they are stigmatised and treated as an outcast.
A Battle Half-Won
While decriminalising gay sex by striking down Section 377 of the IPC is a step forward for many, there are still many prevalent issues concerning the rights of the queer community in India. The government must enable the queer community with the right to marry and lead a family as most healthy couples do in their relationship.
The revocation of a ban must find its way to expand to a complete cognisance of civil rights. Parenthood for the queer community is out of the question for most in our country. The fundamental right to parenthood for the LGBTQI+ community is not even recognised or accommodated by law or society itself. In the past judgements, the Supreme Court has interpreted the scope of Article 21 of the Constitution (the right to life and personal liberty) to include the right to motherhood and the right to reproductive autonomy. Regardless, this does not apply equally to same-sex couples, transgender individuals, and the LGBTQI+ community in general.
What Does The Law Say?
Most laws in India that fall under the spectrum of family laws are in some way or the other related to marriage. All legal roads leading to surrogacy, adoption, succession, guardianship, and so on are inter-connected and affiliated to marriage. And since the queer community is excluded from the right to marriage, their access to all these other laws is limited.
Article 6 of the United Nations' Universal Declaration of Human Rights clearly mentions that "men and women of full age… have the right to marry and to found a family." However, the LGBTQI+ community stands at a disadvantage in India as the right to start a family is only presented to heterosexual, cisgender men and women.
According to our country's adoption regulation published on the official website for the Central Adoption Resource Authority (CARA), couples who have been married for two years and single women can adopt a child. Asingle man can only adopt a male child. There is no mention of same-sex couples or transgender individuals whatsoever in these policies.
The Surrogacy (Regulation) Bill, which the Union Cabinet approved in February 2020, stated that commercial surrogacy is fully banned, and altruistic surrogacy is permitted for Indian married couples, divorced or widowed Indian single women, or Indian origin married couples. Clearly, this does not include live-in couples, most single parents, and the LGBTQI+ community.
What Can Be Done To Pace Up The Fight For Equality?
The taboo and stigma of being a homosexual in an Indian household need to be altered and done away with by normalising these ideologies and educating societies on different sexual orientations. Many homosexual couples hide their identity, fearing rebuke from the society and community they live in. Normalising same-sex marriages is the only way forward. Among those working to legalise same-sex marriages in India are lawyers Arundhati Katju and Menaka Guruswamy (who were intsrumental in scrapping of Article 377) under the "Marriage Project".
The media and television industry must join hands to raise awareness and destigmatise homosexual marriages through TV shows and movies. Corporate firms are coming together to be more inclusive of the marginalised communities by roping in LGBTQ employees.
More individuals need to come forward and file public interest litigations (PILs) to legalise same-sex marriages to access other legal roads. Many historians believe that homophobia in India started as a product of the British Raj. It only became stronger after Independence. A lot of learning, especially in the pandemic, comes from home for the children and adults alike. The need to sensitise the older generations and educate the younger has never been felt more. Historically, the country has seen a lot of tension between LGBTQ and several religious movements. To become accepting of the community, we must understand the ethos of various religions. One cannot deny that an overnight change in the mindset is an over-ambitious target. However, slight changes at the root level can count as a giant leap in the decades to come.