Navigating Legal And Social Landscapes - The Evolution Of Same-Sex Couples And Their Rights In India
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NAVIGATING LEGAL AND SOCIAL LANDSCAPES: THE
EVOLUTION OF SAME-SEX COUPLES AND THEIR RIGHTS
IN INDIA
Muthu Meena K, Vellore Institute of Technology, Chennai
ABSTRACT
The colonial era law, the Indian Penal Code, was the statute which had previously criminalized queer relationships and consensual homosexual relationships. After the Supreme Court’s landmark judgment in 2018 in the case of Navtej Singh Johar V. Union of India1, Section 377 of the Indian Penal Code was decriminalized, making it legal for queer people to love whomever they want. Even though it has been more than half a decade since homosexuality was decriminalized in India, queer people still face a lot of struggles in their day-to-day lives which is unknown to many people. This paper delves into the issues that are faced by same-sex couples, including the lack of formal legal recognition of their union and societal acceptance.
Additionally, this paper also delves into the progress that has been made by the Indian Society and law makers over the years, while the journey towards full equality and acceptance remains ongoing. This paper also inquiries into how the introduction of a Uniform Civil Code, could potentially facilitate the recognition of same-sex marriages in India and their other personal rights therein. The objective of this paper is to analyse if people in general are aware about the struggles faced by queer people in India, and to identify what could be done to create more awareness and educate people more on the same. Keywords: Queer, Marriage, LGBTQ, Society and Struggles.
1 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1
Introduction
A majority of the nations around the world, have at some point criminalized or prohibited
consenting homosexual acts between adults. And India, is no exception to that. The Indian Penal Code which is a colonial era law, brought in by the Britishers, had codified Section 3772, an anti-sodomy law, which was majorly based on Victorian/Judeo-Christian values3. The Section criminalized the acts of consensual relationships between two consenting homosexual adults. LGBTQ Movements across the world have fought against discrimination based on gender identity and sexual orientation, while these movements could have taken place over different time and places. The emergence of the HIV/AIDS epidemic throughout the world in the 1980s had a meticulous effect on queer individuals, by bringing to light the hidden discrimination that was faced by them. When AIDS first appeared in India in the latter half of the 1980s, it has a perplexing effect.
As one of the consequences of this, it created a stigma against the people who were already affected by the disease, and they started hiding themselves as a result, and it also brought attention to those individuals who were invisible because of their differing sexual orientations. There was a common misconception amongst the people that HIV/AIDS was only prevalent among LGBTQ individuals4. The Indian Penal Code was a major block which prevented people from coming forward for HIV testing. Because there was a huge possibility of them being punished under Section 377. This whole situation led to an unfortunate collision of the law with the raising disease, which made the activists in our country realise that the antisodomy law in India needs to be confronted5.
Since then, for the past 24 years, the queer citizens of India have been fighting for equal rights in relationships, marriage, adoption and maintenance. In September of 2018, the Supreme Court of India decriminalized Section 377 of the Indian Penal Code, thereby making it legal for two consenting homosexual adults to be in a relationship with each other6. Since then,
2 Indian Penal Code, 1860, § 377
3 Johnson, P. G. (2017). Lessons for Legalizing Love: A Case Study of the Naz Foundation's Campaign to Decriminalize Homosexuality in India.
4 S. S. Ramaswamy, Understanding HIV/AIDS in India: The Role of the Media and Government, 30 Indian
Journal of Public Health 15, 18 (1988) 5 Borah, P. K. (2018). Engaging with the law: Decriminalisation of homosexuality and the Johar Judgement,
2018. Space and Culture, India, 6(3), 5-22.
6 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 (SC)
several petitions have been filed by LGBTQ individuals from all across the country as they still do not have the basic rights that the heterosexual couples enjoy. This paper aims to delve into the history of queer people in India, the legal milestones that have been achieved, the current legal landscape in the country, the societal challenges that are faced by queer individuals, the progress made over the years, potential legal reforms for the betterment of the community, and the need to raise public awareness and educate people about LGBTQ individuals7. Literature Review The laws regarding the lives of the LGBTQ individuals of India are majorly shaped by the laws that were introduced by the Britishers during colonisation, especially the introduction of Section 377 into the Indian Penal Code in 1860, which thereby criminalized homosexuality.
This colonial era law is a reflection of Victorian Christian values that were being followed by the Britishers, and it as a result, suppressed the diverse sexualities and gender identities in our Society. Research shows that the pre-colonial India was a much more inclusive country, and had a very open approach to sexualities. This finding is supported by the historical records and religious texts which indicates that various gender identities and sexual orientation was recognised throughout India8. Despite being so progressive before the Britishers made their way into our country, the colonial laws became entrenched, which led to the marginalization of the LGBTQ Community in India. Despite all the legal advancements that have been made over the past two decades, the society’s attitude towards the LGBTQ Community remains the same in India.
Studies that were carried out throughout India show that LGBTQ individuals face a high level of stigma, discrimination and being excluded, particularly within families and communities9. Public acceptance, and the lack thereof in our country, continues to be the significant factor which affects the mental health of the LGBTQ individuals in our country, leading to higher rates of depression, anxiety and social isolation10. The limited to no representation in the field of cinema, ends up reinforcing
7 Nandini Nair, Post-S377: The New Legal Era for LGBTQ Rights in India, 12 Journal of Indian Law and
Society 45, 51 (2020)
8 Aarti Karnik, Sexuality and the Law: The Indian Case, 30 Indian J. Gender Studies 31, 35 (2013)
9 P. Chandra, Homophobia in Indian Society: Challenges and Opportunities, 14 J. Indian Soc. Psych. 72, 79 (2016)
10 India Mental Health Review, World Health Organization (2021), https://www.who.int/india/reports
negative stereotypes about the queer community, increases societal prejudice, and continues to keep the LGBTQ individuals’ life marginalized. The recognition of same-sex marriages continues to be an issue in our country. The verdict delivered by the Supreme Court in the 2023 case Supriyo @ Supriya Chakraborty & Anr. v. Union of India11, reaffirmed the absence of a fundamental right to marriage for queer individuals. The court held that the right to marriage is not an absolute right, and is bound to a few restrictions. Activists across the country argue that the recognition of same-sex marriages is an essential step in ensuring absolute equality, especially in cases related to inheritance, adoption and social security12.
This Research paper underscores the need for continuous legal advocacy regarding the issue, public education, and the introduction of social reforms to create a more inclusive society for queer individuals in India. Research Objective This paper explores the evolution of LGBTQ rights in India over the past two decades, focusing majorly on the decriminalization of homosexuality and the continuing struggle for the recognition of same-sex marriages in India. While many significant improvements and developments have been made, like the Navtej Singh Johar V. Union of India judgment in 2018, which decriminalized homosexuality, the LGBTQ Community have still not achieved absolute equality in the country. The research traces the legal battles that have been fought by the LGBTQ Activists in the country and the judicial decisions that have shaped the current position of same-sex marriages.
Additional to analysing the legal framework that has been established in the country, this research will also examine the societal challenges that are faced by the queer community in their day-to-day lives, including the social stigma, discrimination and the mental health issues which arises from the lack of acceptance from families and communities. The research also suggests a few social reforms, including the recognition of same-sex marriages as a first step, amendments to the adoption laws, and anti-discrimination legislation. The role that could be
11 (2023) 14 SCC 11 (India)
12 S. Patel, Legal and Social Challenges of Same-Sex Marriages in India, 34 Indian L. Rev. 45, 53 (2022)
potentially played by the introduction of Uniform Civil Code in promoting social inclusion and ensuring of equal rights for same-sex couples is also explored. Historical Overview Consensual Homosexual Acts were prohibited by the Britishers when they first introduced Section 377 in the Indian Penal Code in 1860. However, this prohibition was primary based on the religious beliefs of Christians, reflecting on the moral practices that was prevalent in European countries during that time13. In Ancient India, different sexual orientations and gender identities was very much prevalent, and according to the religious texts and history of our country, it is very evident that India before it was colonised was very much progressive towards queerness.
A very prevalent common misconception amongst the people is that they think homosexuality is a western concept, and that its against the culture of India, thus labelling it “unnatural”. The Indian history, be it ancient epics, scriptures, poetry art or architecture in the temples, is all full of queerness. Love in all forms was accepted and celebrated all across ancient India. According to Ramayana, when returning from Sri Lanka, Lord Hanuman came across rakshasa women embracing other women. Although homosexuality was disapproved to an extent during the Medieval period, LGBT people were not ostracised. No one was punished or hounded just because they had a different sexual preference, and the society in general, was more accepting of them.
After the Britishers had arrived at India, the introduced the concept of “Sexual activities which were against the order of nature” which included even consensual homosexual activities and it was criminalized according to Section 377 of the Indian Penal Code. A huge reason as to why homosexuality was criminalised during the British period in India was because their ideologies were majorly influenced by the beliefs of the Catholic Church, and they believed that sexual acts which do not end up with procreation was a sin. A Public Interest Litigation was filed at the Delhi High Court in 2001 by Naz Foundation, an
NGO, which challenged Section 377 of the Indian Penal Code. Later, in 2009, The Delhi High 13 Mahajan, M. (2022). Homosexuality in India-Decriminalisation of Section 377 of IPC. Part 2 Indian J. Integrated Rsch. L., 2, 1.
Court held that Section 377 was violative of the fundamental rights that have been enshrined in the Constitution. The section violated several rights like the right to life, right to liberty, right to privacy, and the right to equality. This ultimately meant that consensual homosexual acts were not considered to be a crime anymore, but they were not legal either. This was considered to be a landmark decision in the history of LGBTQ cases in India. However, in 2013, the Supreme Court of India overruled the previous decision made by the Delhi High Court in 2009, and re-criminalized consensual same-sex relationships. By 2017, the Supreme Court of India, according to the country’s privacy laws, gave its citizens the freedom to freely express their sexual orientation, but homosexual acts still continued to be illegal. In 2018, the Supreme Court of India, in the case of Navtej Singh Johar V.
Union of India14, struck down the part of Section 377 which criminalised consensual homosexual relationships, thereby declaring the section unconstitutional. The ruling in this case paved the way for more discussions and an increase in advocacy towards LGBTQ rights in the country. In 2021, several marriage petitions were filed in the Supreme Court of India, which demanded the Courts to legalise and recognise same-sex marriages in India. In 2023, the Supreme Court of India, in the case of Supriyo @ Supriya Chakraborty & Anr. V. Union of India15, held that the right to marry is not a fundamental right for queer persons, thereby upholding the validity of the Special Marriage Act, 1954. Since the verdict in this case was pronounced, review petitions have bene filed in the Supreme Court, asking the Judges to consider how the daily lives of queer citizens in India are being affected.
There has been an increase in the discussions surrounding the legalisation of same-sex marriages, even though it still continues to be issue. The journey towards achieving equality continues in India, along with ongoing activism and the resilience from communities which is playing a crucial role in shaping the future of queer individuals in India. Legal Milestones There are a few cases in India, which highlights the significant legal battles that have been
14 AIR 2018 SUPREME COURT 4321
15 2023 INSC 920
fought in order to obtain rights by the LGBTQ Community. A lot of progress has been made, especially since the 2018 decision of the Supreme Court in the case of Navtej Singh Johar V. Union of India. India’s history of developments made for the LGBTQ Community started with the case of Naz Foundation V. Government of NCT of Delhi16, in which they decriminalized consensual homosexual acts between two consenting adults, thereby declaring Section 377 unconstitutional as it violates the fundamental rights of its queer citizens. This was a historic milestone as this case recognized LGBTQ citizens of the country and provided them legal recognition. In the case of National Legal Services Authority V. Union of India17, the Supreme Court of India legally recognized Transgender individuals as the third gender, and affirmed their voting rights.
This ruling laid a lot of emphasis on the need to provide Transgender people with more social, economic and educational rights. This decision was a significant step in recognizing and protecting the rights of transgender individuals in India. In 2013, the Supreme Court had recriminalized Section 377 in the case of Koushal V. Naz Foundation18. The Court held that any change regarding the statute should arise from the legislature and not from the judiciary, which lead to a lot of activists criticizing this judgment. This judgment was a huge setback for LGBTQ individuals in the country. Later, in 2018, in the case of Navtej Singh Johar V. Union of India, a landmark judgement was delivered by the Supreme Court of India, which again decriminalized consensual same-sex relationships by reading down Section 377 of the Indian Penal Code.
The court held that the section infringed the fundamental rights of the queer individuals in the country, and laid more emphasis on the importance of right to dignity and right to privacy. This ruling was a huge victory for the LGBTQ citizens of the country and re-affirmed the principles of equality that is enshrined in the constitution.
16 2010 CRI. L. J. 94
17 AIR 2014 SC 1863
18 AIR 2014 SUPREME COURT 563
Following the Johar judgment, the Indian Parliament enacted the Transgender Persons (Protection of Rights) Act, in order to protect the rights of the Transgender persons in the country. The Act prohibits discrimination in the educational, employment, and healthcare sectors. There is an ongoing fight for the recognition of same-sex marriages in India. While so many developments have been made in the recent years with regard to LGBTQ rights in India, the legal landscape surrounding marriage equality still remains uncertain. The right to marriage is an essential aspect surrounding the individual’s dignity and personal freedom. Denying same-sex couples the right to be legally recognised as a married couple also denies them the right to be treated equally and at par with other people in the country.
This also reinforces systemic inequalities, and impacts their inheritance rights and all the other rights that are normally available to heterosexual married couples. In order for same-sex marriages to be legally recognized in the country, it is important that there is persistent advocacy and societal engagement in order to ensure that the rights of the same-sex couples are acknowledged and respected in India19. Current Legal Landscape The Special Marriage Act of 1954 was introduced in India as a way to promote marriages that are free from religious customs and practices. It mainly promoted the union of two people from different religious backgrounds. The Act also encourages Inter-Caste marriages, in order to promote social integration and caste-based discrimination. Petitions were filed in the Supreme Court of India, arguing that the provisions of the said Act were unconstitutional.
The petitioners argued that Section 4(c) of the Act was unconstitutional as it only recognises a marriage between a “male” and a “female”. This was found to be discriminatory towards same-sex couples who wanted to be married to each other. Ultimately, their rights for adoption, surrogacy and other matrimonial benefits were also denied20. The petitioners also argued that the non-recognition of marriage between same-sex couples in the Act violated the right to equality and dignity which had been previously mentioned in the 19 Jain, S. , & Bhanwar, V. (2022). Analysis of Social and Legal Transformation after Decriminalization of Section 377 IPC. Part 1 Indian J. Integrated Rsch. L. , 2, 1. 20 Kumar, S. , & Gupta, M. (2022). The Discourse of Homosexuality in Indian Scenario. Jodhpur Studies in English, 80.
case of Navtej Singh Johar V. Union of India in 2018. On October 17th, 2023, a five-judge bench pronounced its verdict on the marriage equality case, and unanimously held that the queer citizens of India had nor fundamental right to marriage and that the court cannot recognise the LGBTQ Community’s right to marriage under the Special Marriage Act of 1954. Societal Challenges A huge range of societal challenges are being faced by the LGBTQ citizens of India on a dayto-day basis. And this has the potential to significantly impact their quality of life. There exists a deep-rooted societal stigma towards LGBTQ people in India. They are put to face discrimination in all aspects of life, including employment, education and healthcare. Most of the families in India are also not that supportive, which could lead to them being socially isolated.
Growing up queer, individuals are often exposed to a risk of being physically and mentally harassed. Hate crime and bullying towards queer individuals are very common, and this might lead to them feeling unsafe in public spaces or even sometimes in their own homes. Facing all kinds of discrimination from the society and from their own family members will lead to the queer individuals being socially isolated, and this can lead to significant mental health challenges, which includes anxiety, depression and suicidal thoughts. Many queer individuals face the issues of accepting their own identities due to a fear of being rejected in the society. While same-sex relationships were legally recognised in 2018, same-sex marriages are yet to be recognised and this denies them the protections surrounding marriage, adoption, inheritance and social security.
Many LGBTQ individuals in India are also expected to be in conformity with heteronormative social expectations, which leads to them forcing themselves into a marriage, or their families make them go through conversion therapy which aims to change their sexual orientation or gender identity. This can cause life-lasting trauma to the individual. There is little to no positive representation of LGBTQ individuals in media, and even if there were, they’re mostly used as a comedic role which makes fun of their identity and promotes homophobic behaviour amongst people. Queer individuals also face a lot of discrimination in the employment sector, which leads to them being financially unstable, often having to hide their true identities, which could also hinder them from being offered more career opportunities and advancement in their own fields.
Addressing these societal challenges requires more comprehensive efforts from the people of the country, and from the legislature which needs to introduce more legal reforms in order to protect the LGBTQ individuals of the country, educational initiatives in order to educate the people about how it is necessary and important to respect and treat queer individuals with respect and dignity just like any other person, and start more awareness programs across the country in order to foster acceptance and understanding within the society. In order to build an equitable society, it is important to promote inclusivity and equality for the country’s LGBTQ individuals.
Potential Legal Reforms In order for the LGBTQ citizens of our country to enjoy their fundamental rights to their fullest, it is necessary that they need to be given the same marriage rights that are given to heterosexual couples in our country. Now that same-sex relations are legally recognised in the country, it is essential for same-sex marriages to also be recognised in order for them to lead a dignified life with respect. As a first, same-sex marriages need to be granted legal recognition, so that same-sex couples can also be given the same rights as other couples in matters governing marriage, adoption, inheritance and property. This would ultimately give same-sex couples the same protection and matrimonial benefits that are already being provided for heterosexual couples, thus also promoting equality amongst everyone.
It is highly necessary that the legislature introduces Anti-Discriminatory Laws in the country in order to provide the individuals protection from being harassed or bullied on the basis of their sexual orientation or gender identity. Such laws could also prevent them from being discriminated in all aspects of life including employment, education, housing and healthcare. The introduction of such laws could help in creating a safer environment for LGBTQ individuals, thereby also reducing workplace discrimination and harassment. The existing adoption laws need to be amended in order to allow same-sex couples to legally adopt children. This would enable same-sex couples to form families legally and ensure that
children who do not have a home are placed with loving families irrespective of their parents’ sexual orientation. It is very important to include LGBTQ curricula in schools and colleges in order to educate young people about diversity, inclusivity and respect for all people, irrespective of their gender identities or their sexual orientations. Just like how there is a need to address crimes that are related with honour killing, it is also important to introduce new mechanisms through which hate crime towards LGBTQ individuals can be reported. This would enhance the safety and security for individuals, and also help in deterring hate crimes. Implementing these legal reforms would be a significant step towards achieving true equality in the country, by rendering justice to the LGBTQ Community.
By providing them with adequate legal recognition and protections, we could create a society that is more inclusive and equitable. Continuous and persistent advocacy, along with increased public awareness will be essential in driving these changes forward. Conclusion This research paper aims to highlight the ongoing journey of the LGBTQ community in India, as they fight for the legal recognition of same-sex marriages and also the legal and societal challenges that are faced by them while doing so. While the Supreme Court of India decriminalized homosexual relations in the landmark judgement delivered by them in the case of Navtej Singh Johar V. Union of India, it also underscored the need for a broader legal recognition and societal acceptance.
Even though the Johar judgement was a monumental step forward, it also reveals the limitations that still exist in the country with regard to same-sex marriages, which have a hug effect on the lives of queer individuals. As discussed in the paper, despite the progress that has been made over the recent years, the LGBTQ Community still faces significant societal stigma, discrimination and violence which has an adverse effect of their mental health thereby leading to social isolation. Same-sex marriages, and India’s lack thereof, denies the LGBTQ citizens of the country the rights and protections that are offered to heterosexual couples, which further increases
inequality. In order foster equality amongst the people in the society, this paper elucidates a few potential legal reforms, including the recognition of same-sex marriages, the introduction of Anti- Discrimination Laws, and the immediate amendments to adoption laws in the country, thereby allowing same-sex couples to legally adopt and create families, Only by the collaborative work of the lawyers, activists, lawmakers and the society at large can pave the way for a future where every individual, irrespective of their sexual orientation or gender identity, can live freely, openly and with dignity. The journey towards equality is ongoing, and the continuous resilience by the LGBTQ Community and their allies will be very crucial in this transformative process.
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