“Mainstreaming” the Civil Rights of the LGBTQIA+ Community

By Muskan Pamnani and Akshara Rajratnam

It takes no compromise to give people their rights. It takes no money to respect the individual. It takes no political deal to give people freedom. It takes no survey to remove repression.

– Harvey Milk

INTRODUCTION

The month of June 2021 marks the 51st celebration of Pride Month, a time when millions of people come together to blunt the sharp edge of discrimination against the LGBTQIA+ community. The Indian judiciary, with its judgments in NALSA v. UOI and Navtej Singh Johar, initiated the process for the inclusion of the LGBTQIA+ community by conferring transgender rights as a matter of Human Rights. But still, there exist enormous gaps in the statutory laws which do not grant the full range of civil rights to the LGBTQIA+ community as those available to a heterosexual person.

THE RIGHTS IN QUESTION

1. THE RIGHT TO CHOOSE PARTNER AND RIGHT TO MARRY

The Constitution does not expressly recognize the right to marry, unlike Article 16 of the Universal Declaration of Human Rights. It has been recognized only through judicial decisions as the fundamental right to choose a partner irrespective of caste, creed or religion, inherited under the right to life and personal liberty under Article 21 of the Constitution. The question of “choice” has been extensively dealt with in Justice KS Puttaswamy (retd) v. UOI, in which the majority opinion delivered by Justice D.Y Chandrachud recognized the right to choose one’s sexual partner as a fundamental right. The Court unequivocally held that: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.”

Moreover, in Shakti Vahini v. UOI and Shafin Jahan v. Asokan K.M, the Hon’ble SC, in the most specific terms, held that the right to marry when two adults consensually choose each other as life partners is a manifestation of their choice, which is recognized under Article 19 and Article 21. The SC also held that “Society has no role to play in determining our choice of partners and no fetters could be placed on one’s choice.”

While none of the aforesaid judgments was apropos of same-sex marriages, can it be argued that the right to marry would only apply to heterosexual couples and not to other couples? No, the same would amount to discrimination on the basis of sex and liberty of an individual violating Article 15 and Article 21 of the Constitution. Because the underlying reasoning in these judgments applies to every adult, and no limited reference can be carved out only to heterosexual couples or others. The rationale underlying these judgments recognizing the right to marry and choose a partner is applicable to all kinds of marriages, and it can’t be said that these judgments shouldn’t apply just because the couple in question was heterosexual. Therefore, it is beyond doubt that the fundamental right to marry a person of one’s own choice has to be conferred on non-heterosexual couples intending to marry. However, the battle for equality appears to be an uphill task, with the State clearly opposing such petitions on the ground that Indian law and culture do not recognize same-sex marriages. But the recent decisions of the High Courts of Orissa, Punjab & Haryana and Uttarakhand expressly recognizing and enforcing the rights of same-sex couples to live together does give some hope of the courts being receptive.

2. THE RIGHT TO INHERITANCE OF PROPERTY

In India, inheritance laws differ from community to community. In most of these laws, there lies a distinction in the way of inheritance by men and women. The right of the inheritance cannot be availed by a member of the LGBTQIA+ community legally, as queer people need to compromise their gender identity and put themselves as either male or female in order to come within the ambit of the inheritance laws becausethe inheritance law discriminates on the ground of sex based on the victorial morality and stereotyping an individual by limiting the term ‘gender’ only as either male or female. This criterion of inheriting property from the parents and family is violative of Article 14 and Article 15 of the Constitution,denying the right to equality and non-discrimination.

While the inheritance of property is governed by personal laws, which are uniform across the country, the inheritance of agricultural land is governed by state laws. The transgender people in UP can now inherit ancestral agricultural land after an amendment to the UP Revenue Code of 2006, which removed the limitations of nomenclature in inheritance laws that only mention “sons”, “daughters”, “married”, “unmarried” and “widow”.

Most of the issues related to inheritance are faced by same-sex couples due to the non-recognition of their marriage and their associate rights. They are not able to be a nominee for their partner as they would have to submit a declaration of their relationship in order to be eligible as each other’s nominees, which, in the absence of proof of marriage, is not possible. In addition, the effect of asking for proof of family/marriage is a denial of family health coverage to the queer people. Even if we take into account the COVID-19 pandemic, they were not able to fill the consent form on the other partner’s behalf as they need to reach a blood relative.

3. THE RIGHT TO ADOPTION

Adoption in India is governed by the Hindu Adoptions and Maintenance Act, 1956 [“HAMA”] and the Juvenile Justice Act. Under HAMA, capacity for adoption is illustrated for males andfemales and therefore, there exists a grey area regarding the application of such laws to non-heterosexual couples. The Adoption Regulation Act and the HAMA does not seem to recognize adoption by non-heterosexual couples as they only state and use the words “husband” and “wife” while laying down the eligibility for adoption under Section 7 & 8.

Similarly, the eligibility of prospective adoptive parents (“PAPs”) under Section 57 of the JJ Act states that “no child shall be given in adoption to a couple unless they have at least two years of stable marital relationship”. Since non-heterosexual marriages are yet to be recognized in India, it is not possible for non-heterosexual couples to establish two years of a stable marital relationship, and this renders them ineligible to be adoptive parents. Furthermore, societal stigma denies such kinds of relationships the ‘badge’ of a ‘healthy family’. Still, the social norms consider non-heterosexual couples as an inferior family, due to which adoption authorities are discouraged from allowing the adoption to such couples based on the belief that every child must be able to know the value of both a mother and a father. However, what is ironic is the fact that the law and the social stigma continue to disentitle the LGBTQIA+ couple from adopting an orphan child even when there are more than 20 million orphans in the country rather than being adopted by non-heterosexual couples.

THE WAY FORWARD

The authors believe that the legal framework as a whole has failed to ensure proper recognition of the rights of the queer people,and there exists institutionalized persecution of the LGBTQIA+ community, which must come to an end. To end this injustice and meet its constitutional obligations, India must adhere to the following proposals:

Firstly, the legislative action and the restructuring of laws is required as currently, the statutory frameworks dealing with marriage, succession, parenthood, and related matters operate only in the male-female binary and assume the heterosexual family as the only normative standard. The language of the inheritance law and personal laws governing marriages should be made gender-neutral.In order to recognize same-sex marriages, there needs to be an amendment in the Special Marriage Act to add a specific provision as permitting same-sex marriages on the ground that otherwise would be discriminatory against same-sex couples and hence unconstitutional. In any case, even if personal laws are amended to recognize same-sex marriages, the SMA would have to be amended to accord the same recognition to relationships between persons belonging to different religions. Fortunately, petitions in the Delhi High Court and the Kerala High Court for recognition of homosexual marriages under the Special Marriage Act are filed and are pending adjudication.

Secondly, through judicial actionby reading down the language in the personal laws and the law of inheritance so that even transgender people or the person who undergoes sex change shall not be discriminated against. The legislature must confer the same-sex couples significant rights like sharing of insurance, filing joint tax returns etc., and it can be rather recognized as a relationship based on emotional and economic interdependency.

One only hopes that the discriminatory statutory laws in the country be replaced by a rights-respecting process that extends the strongest protection to the LGBTQIA+ community. Unarguably, the Indian State and the society must someday take as pragmatic a view as the courts have in this battle for equal rights and dignity.

#HAPPYPRIDEMONTH #PRIDEAGAINSTPREJUDICE

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(Muskan and Akshara are members of our Editorial Team. They may be contacted via mail at muspamnani@gmail.com and/or rajratnamakshara@gmail.com)