“Some say that sexual orientation and gender identity are sensitive issues. I understand. Like many of my generation, I did not grow up talking about these issues. But I learned to speak out because lives are at stake, and because it is our duty under the United Nations Charter and the Universal Declaration of Human Rights to protect the rights of everyone, everywhere.”
~ UN Secretary-General Ban Ki-moon to the Human Rights Council, 7 March 2012
Violence aimed at individuals who identify, or are perceived as lesbian, gay, bisexual, transgender, queer (LGBTQ), or otherwise gender-variant has been a part of the fabric of most societies both historically and in the present era. Sexual minorities are victimized by the state as well as the private actors and are discriminated against, on the grounds of something as simple as sexual orientation.
On the 6th of September, 2018, India took a progressive step by scrapping off Section 377 of the Indian Penal Code which criminalized consensual sexual conduct between adults of the same sex. The Court held that discrimination on the basis of sexual orientation would violate article 14 that grants everyone the right to equality. It further held that criminalizing “consensual sex between adults in private” was a violation of their right to privacy, and denying sexual orientation would violate article 21 that guarantees everyone the right to life and that fundamental rights couldn’t be denied on the ground that they only affect a tiny fraction of the population.
That day marked the end of years of struggle by the sexual minorities and a step towards the true realization of our democratic ethos. Although it was a day of celebration, the real question still is- Has the country truly realized it’s democratic ethos? The answer leads us to disappointment as we see the unwavering existence of discriminatory laws in the country that continue to mistreat them. This country hasn’t realized its core legal obligation to protect the sexual minorities and the discriminatory laws are a major cause of concern since they deny them of their basic fundamental rights.
This article aims to analyze the fallacies in the legal framework that restrict inclusivity. It has examined the discriminatory marriage laws in the country and how the fundamental rights of sexual minorities are not unprotected.
THROUGH THE PRISM OF INDIAN LAWS
- Discriminatory Marriage Laws in India
Section 5 of The Hindu Marriage Act, 1955 states several conditions that have to be fulfilled by both the parties. One of the conditions is “the bridegroom should have completed the age of twenty-one years and the bride the age of eighteen years at the time of the marriage.” The inherent issue is that this act allows marriage only between the bride and the bridegroom. Even the Indian Christian Marriage act states that a man should be of twenty-one years and the woman of 18 years. Section 4 (c) of the Special Marriage Act also mentions the conditions relating to solemnization of marriages and it confines itself to concerned only about a man and a woman. These acts are inherently discriminatory in nature and are ignorant of the plight of sexual minorities.
There is a dire need to amend these laws where even the individuals belonging to the LGBT community are also given the right to marry so that their relationship is given an identity.
- Violation of Article 21
The decriminalization of Section 377 of IPC is a step towards the improvement of the status of LGBT Community in the society, but with the same being said they have not been identified by the legal system. Their Fundamental right to lead their life with social dignity under Article 21 is violated when the legal system itself is discriminatory against them. They need to be provided with social acceptance and justice. The term Social justice has been defined as under:
“Social justice, equality and dignity of person are cornerstones of social democracy. The concept ‘social justice’ which the Constitution of India engrafted, consists of diverse principles essential for the orderly growth and development of personality of every citizen.”
In Shafin Jahan vs Asokan K.M., it was held “The right to marry a person of one’s choice is integral to Article 21 of the Constitution.” Yet, they’ve not been given the right to marry. In Justice K.S. Puttaswammy v. The Union of India, it was held “privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy.” This Judicial interpretation does give some relief yet the legislations in their nature continue to be discriminatory.
Violation of Article 21 has raised a question as to what is their social status? Are they only two individuals who have been permitted to perform an act within closed doors? What this does is it simply leaves their relationship or individuality to the performing of an act? There is no development or evolvement, which is against the whole principle of leading their life with dignity and goes against our constitutional culture which seeks to ensure the full development and evolution of persons.
- Violation of Article14
Their right to equality has been violated as the above-mentioned marriage laws in India are discriminatory against them. They’ve been allowed to “love” but not to marry. They’ve been discriminated on the ground of something as simple as gender. The difficulty that arises here is with our instantaneous situation where the individuals of the LGBT community are deprived of some of the rights that are essential to fulfil the requirements of Article 21 too. Even after having won the battle in the Supreme Court, the sexual minorities have not yet been equalized.
RESPONSE BY THE INDIAN JUDICIARY
A division bench constituting of Chief Justice D.N. Patel and Justice C. Harishankar turned down a plea filed by Adv. Tajinder Singh after noting centre’s response in the matter stating that drafting of law was the prerogative of the Legislature. The main contention raised by the court was “Can a writ court direct legislature to constitute
a Committee?” the bench remarked, adding that drafting of law was the prerogative of the Legislature. The petitioner had pressed for bringing in appropriate changes to the Hindu Marriage Act and other personal laws to recognize the rights pertaining to marriage, adoption etc as well as the constitution of a commission for LGBT. To this, the court further said that if the government ‘chooses to constitute’ an LGBT Committee, they were permitted to do so. The Centre in its response had stated that it is taking all the necessary measures for upliftment of transgenders and also to bring them into the mainstream.
“The Constitution treats everyone equally without any discrimination. It is the duty of the State to ensure that no one should be discriminated,” the plea said, adding that members of the LGBT community are in minority and they too have equal fundamental rights.
The discriminatory marriage laws have treated sexual minorities as the Invisibles. The prevalence of such discriminatory laws is a disgrace to the democratic ethos of our country. The Indian Judiciary has left the sexual minorities in a grey area. Their fundamental rights are not taken care of in a welfare state which guarantees social justice to all its citizens. Appropriate amendments to the marriage laws should be proposed to safeguard the rights of the LGBTQI+ communities and to establish a more inclusive society.
ABOUT THE AUTHOR
Divyansh Sharma is a second-year at Gujarat National Law University, deeply interested in commercial law and ADR.
Pravah Ranka is a first-year student at Gujarat National Law University pursuing BA-LLB (Hons.).