On The Margins With Full Equality Still Out Of Reach

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

 

Courts as the beacon of individual rights of queers in India

• Naz Foundation vs Government of NCT of Delhi case, 2009: Delhi High Court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution because it creates an unreasonable classification and targets homosexuals as a class.
• Navtej Singh Johar & Ors. vs Union of India case, 2018:
  • SC held that application of Section 377 of the Indian Penal Code (IPC) to consensual homosexual behaviour between adults was “unconstitutional, irrational, indefensible and manifestly arbitrary”.
  • This case corrected the retrograde step taken in Suresh Kumar Koushal vs Naz Foundation case, 2013, where the court reinstated Section 377 to IPC and thus provided a launchpad for LGBTQ+ jurisprudence and queer liberation movement in India.

Continuing discrimination against the LGBTQ+ community

• Equality a distant dream: Despite progressive judicial verdicts, in matters of employment, health and personal relationship, there is still a lot of discrimination against sexual minorities.
• Persistence of archaic views: E.g. Viewing homosexuality as a mental disorder.
• No same-sex marriage rights: Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India, stating that decriminalisation of Section 377 of IPC does not automatically translate into a fundamental right for same-sex marriages.

Way forward: Go beyond judicial verdicts -

• Lessons from a changing global value system: As of 2021, same-sex marriage is legally performed and recognised in 29 countries.
  • In the US, 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.
  • United Kingdom’s “Alan Turing law” in 2017 granted amnesty and pardon to men who were cautioned or convicted under historical legislation that outlawed homosexual acts.
  • In 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
• Expand Article 15: The grounds of non­discrimination should be expanded by including gender and sexual orientation.
• Initiate sensitisation measures: Including the general public, officials to reduce and finally eliminate the stigma associated with the LGBTQ+ community through mass media and official channels.
  • School and university students, too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity (the root cause of hetero-sexism and homophobia).
• Uphold collective responsibility: It is time for a change, but the burden should not be left to powers. The onus remains with civil society, citizenry concerned and the LGBTQ+ community itself.