“Deciphering the Impact: India’s Supreme Court on LGBTQIA+ UNIONS Rights”   

   

Author:  Liam Vas, Govind Ramnath Kare College Of Law

WRIT PETITION (CIVIL) NO. 1011 OF 2022

A Brief Overview:

On the 17th of October 2023, a Five-judge Bench of the Hon’ble Supreme Court of India, comprising of the eminent Chief Justice D.Y. Chandrachud, and the Honorable Justice’s Sanjay Kaul, Ravindra Bhat, Hima Kohli, and P.S. Narasimha, delivered a landmark verdict following an extensive 10-day hearing. India’s apex court demonstrated an exceptional and meticulous assessment of the situation, reinforcing the fundamental principle that the courts and the legislature of the Republic of India are fundamentally responsible for interpretation, rather than the creation of laws.

This verdict stands as a testament to the judiciary’s unwavering commitment to upholding constitutional values and serving as a beacon of justice for the nation. It reflects the court’s dedication to maintaining the delicate balance of power within the Indian democratic framework.

In a unanimous decision, the Court acknowledged the daunting challenges faced by queer couples, recognizing the widespread discrimination and harassment they endure. Significantly, the Court emphasized that homosexuality transcends boundaries and is not limited to urban, upper-class, or privileged communities. Consequently, the Court issued a directive to the Union Government, mandating the establishment of a high-powered committee charged with addressing and investigating the concerns of Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual + (hereinafter collectively referred to as “LGBTQIA+ UNIONS” for the sake of convenience) individuals.

The Legal Odyssey and Historical Evolution of LGBTQIA+ UNIONS Rights in India:

The overall sentiment and perspective regarding the LGBTQIA+ UNIONS community in the Republic of India have been characterized by a complex amalgamation of opinions. Within the context of India’s legal and judicial evolution concerning this matter, Section 377 of the Indian Penal Code stands out as a significant milestone. This provision, which criminalized same-sex relationships, remained in place until 2009. However, in a groundbreaking move, the Delhi High Court, in the Naz Foundation Case, took a historic step by decriminalizing consensual homosexual acts among adults in that year. Yet, this progressive stride encountered a setback in the Suresh Kumar Koushal Case in December 2013 when the Supreme Court reinstated the criminalization of same-sex relationships. A pivotal juncture was reached in 2018 when the Supreme Court, in the Navtej Singh Johar Case, partially struck down Section 377, effectively decriminalizing consensual same-sex acts among adults. Subsequently, in 2019, India introduced the Transgender Persons (Protection of Rights) Act, a crucial development that acknowledged and safeguarded the rights of transgender individuals while also establishing protections against discrimination.

The Supreme Court’s Ruling:

The Supreme Court’s judgment can be dissected into segments, Brief outline, The Stand Against LGBTQIA+ UNIONS’ Discrimination, Protective Measures for LGBTQIA+ UNIONS’ Rights and Panel Allocation:

1. Brief outline: 

• The esteemed five-judge bench of India’s Supreme Court found itself divided in a 3:2 split, as it ruled against the acknowledgement of LGBTQIA+ UNIONS marriages. While the court refrained from passing a formal order in support of same-sex marriages, it did not turn a blind eye to the challenges faced by the LGBTQIA+ UNIONS community. Notably, the Supreme Court declined to strike down the provisions of the Special Marriage Act (SMA) or introduce amendments to it. The petitions, advocating for the inclusion of same-sex marriages within the Act initially designed for inter-caste and inter-faith unions, were not granted. 
• The primary argument put forth by the LGBTQIA+ UNIONS community through its Counsel’s/Legal representatives, revolved around the notion that discrimination based on inherent characteristics, particularly sexual orientation and gender identity, was in violation of constitutional principles. These included guarantees of equality (Article 14), non-discrimination (Article 15(1)), freedom of expression (Article 19(1)(a)), and rights to privacy and dignity (Article 21). Their plea was for marriage rights equal to those of heterosexual couples. In response, the Center apprised the Supreme Court that any constitutional declaration on this matter might not be the most appropriate course of action, as the court may not be equipped to anticipate and address the potential consequences.  Throughout the pronouncement of the judgement, emphasis was laid on the fact that the court’s role is to interpret the law and by no means create it. The CJI explained that should the court attempt to modify or introduce language into Section 4 of the Special Marriage Act to grant marriage rights to LGBTQIA+ UNIONS community members, it would be encroaching into the legislative domain. Additionally, the Supreme Court clarified that the right to marry is not considered a fundamental right, and as such, cannot be asserted as an absolute entitlement by the LGBTQIA+ UNIONS community. Consequently, the Supreme Court bench declined to extend legal recognition to same-sex marriages, leaving the responsibility for framing the necessary legal framework to the Parliament. The CJI emphasized that the decision on whether changes are needed in the regime of the Special Marriage Act lies within the domain of Parliament.
• Furthermore, The CJI made a poignant observation, emphasizing that while the right to marry, a domain typically determined by the legislature, may not have been extended, members of the LGBTQ community undeniably possess the right to choose their life partners and the fundamental right to intimate association. The state, in recognizing this, is tasked with acknowledging a spectrum of their rights to ensure that LGBTQ couples can fully enjoy their rights of association without any impediments, In this vein, the Supreme Court has issued clear directives to both the Central Government and state governments, including the Union Territories, to take proactive measures in safeguarding and upholding these rights. This signifies a significant step towards creating a legal environment that promotes equality, choice, and the unfettered expression of love and commitment for LGBTQIA+ UNIONS individuals. 

2. Stand Against LGBTQIA+ UNIONS Discrimination

• In a resounding and unwavering affirmation of the fight against discrimination, the Supreme Court has issued a compelling call to action for the government. The directive is crystal clear: take proactive measures to combat discrimination against the LGBTQIA+ UNIONS community rooted in their sexual orientation. The Court has left no room for ambiguity, emphasizing the necessity of raising public awareness about LGBTQIA+ UNION’s rights and, most critically, eradicating all forms of discrimination in the access to goods and services.
• Furthermore, the Supreme Court has dispelled a common misconception that has persisted for far too long. It is not limited to urban settings or restricted to the privileged strata of society. The Court boldly underscores the transcendent nature of queerness, one that defies boundaries of caste, class, and socio-economic status. This proclamation serves as a resounding testament to the universal character of sexual orientation and the indispensable call for inclusive and non-discriminatory treatment, regardless of one’s background.

3. Protective Measures for LGBTQIA+ UNIONS Rights

In a laudable and compassionate effort to safeguard the LGBTQIA+ UNIONS community, the Supreme Court has taken noteworthy actions:

• Establishing Crucial Support Systems: The Court has directed the government to create a dedicated hotline, providing a vital lifeline for LGBTQIA+ UNIONS couples in times of distress or when they require assistance. This hotline stands as a beacon of hope and assistance, ensuring that LGBTQIA+ UNIONS individuals have a reliable source of support.
• Creating Secure Sanctuaries: Furthermore, the Court has underscored the importance of safe houses, offering secure spaces where LGBTQIA+ UNIONS couples can seek refuge and essential support when facing challenging circumstances. These safe houses provide a sanctuary where individuals can find solace and understanding during trying times.
• Championing Intersex Rights: The Supreme Court has shown unwavering commitment to the rights of intersex individuals. It has affirmed the principle of individual autonomy and the right to make informed decisions about one’s own body. No one should be coerced into undergoing operations or hormonal therapy without their explicit consent.
• Protection Against Police Harassment: To protect the LGBTQIA+ UNIONS community from unwarranted harassment, the Court has issued a series of critical directives to the government. It is now a mandate that LGBTQIA+ UNIONS couples should not be subjected to harassment, such as being summoned to police stations or experiencing intrusive home visits for questioning their gender identity or sexual orientation.
• Freedom of Choice and Protection: Of paramount importance, the Court has made it unequivocally clear that the police should not compel LGBTQIA+ UNIONS individuals to return to their native families if they choose not to do so. When a complaint is filed by an LGBTQIA+ UNIONS person alleging restrictions on their freedom of movement by their family, the police are required to act promptly, ensuring that their liberty remains unhindered after verifying the authenticity of the complaint.
• Safeguarding Against Violence: In cases where a complaint is lodged expressing concerns about potential violence from the family due to the complainant’s LGBTQIA+ UNIONS identity or relationship, the police are entrusted with providing necessary protection upon confirming the genuineness of the complaint. Furthermore, before registering a First Information Report (FIR) against an LGBTQIA+ UNIONS couple or any party involved in such a relationship, particularly when the FIR pertains to their relationship, the police must conduct a preliminary inquiry, as stipulated in the Lalita Kumari vs. Government of UP case. This inquiry ensures that the complaint discloses a cognizable offence, shielding individuals from unwarranted legal action rooted in their sexual orientation or relationships.

4. Panel Allocation:

• In a significant and forward-thinking move, the Chief Justice of India (CJI) has welcomed the proposal presented by Solicitor General Tushar Mehta on behalf of the Centre. This proposal outlines the establishment of an expert panel, with the Cabinet Secretary taking the lead. This panel is tasked with the crucial mission of thoughtful deliberation and the formulation of a comprehensive framework. The objective of this framework is to extend an array of rights and privileges to LGBTQIA+ UNIONS couples, aligning with those available to heterosexual couples, while excluding the right to marriage. The expert panel will painstakingly examine and address various other rights related to government services, access to goods, banking, and numerous other domains. This proactive step signifies a substantial leap toward achieving equal recognition and inclusivity. It ensures that LGBTQIA+ UNIONS individuals are not deprived of fundamental rights and privileges enjoyed by their heterosexual counterparts, marking a pivotal moment in the pursuit of equality and social justice. 

5. Societal Implications:

• Progress for same-sex couples in India has been a gradual and arduous journey in the pursuit of recognizing their rights. It wasn’t until 2018 that the archaic colonial-era prohibition on gay sex was finally revoked. The recent case was widely anticipated as a potential watershed moment for LGBTQ rights in the nation. The verdict represents a significant turning point, granting LGBTQ individuals the liberty to engage in relationships without the looming spectre of legal consequences. However, the absence of marriage rights leaves them without legal recognition in crucial family-related matters, including succession, inheritance, and even the basic right to visit a partner in a hospital.

6. Political Reception:

• The Supreme Court’s ruling on the legality of same-sex marriage has sparked a range of reactions from LGBTQ activists. Some celebrated specific aspects of the Constitution Bench’s decision, while others voiced discontent due to its failure to legalize marriages between individuals of the same gender.
• The court’s verdict disappointed campaigners for LGBTQIA+ UNION’s rights in India. Within the country, the Bharatiya Janata Party (BJP) administration took a staunch opposing stance on the petitions presented to the court regarding same-sex marriage. The BJP’s argument centred on the belief that same-sex marriage does not align with the traditional Indian family unit concept, characterized by a husband, a wife, and children. Additionally, the government contended that the advocacy for marriage equality was perceived as an “urban elitist” concept that should not fall under the jurisdiction of a court of law.

Ongoing Challenges and Future Outlooks:

1. Legal Recognition: Legal recognition of LGBTQIA+ UNIONS rights remains an ongoing challenge, as many nations lack explicit legal protections against discrimination based on sexual orientation and gender identity. Additionally, while same-sex marriage is recognized in numerous places, there are still regions where it remains illegal, denying LGBTQIA+ UNIONS couples equal marriage rights.
2. Marriage Equality: The global struggle for same-sex marriage rights persists, as LGBTQIA+ UNIONS individuals in some countries still confront legal barriers preventing them from marrying their same-sex partners. However, advocacy for marriage equality has achieved substantial victories, leading to an increasing number of nations recognizing and legalizing same-sex marriages.
3. Discrimination: Discrimination against LGBTQIA+ UNIONS individuals persists, with employment discrimination, including workplace harassment and unequal opportunities, being a widespread issue. This discrimination has adverse effects on LGBTQIA+ UNION’s mental health, economic prospects, and overall well-being.
4. Mental Health: Mental health disparities within the LGBTQIA+ UNIONS community underscore the necessity for support and awareness, as LGBTQIA+ UNIONS youth are nearly five times more likely to attempt suicide than their heterosexual counterparts, according to the Trevor Project. This discrepancy is fueled by discrimination, stigma, and family rejection, contributing to higher rates of depression and anxiety among LGBTQIA+ UNIONS individuals. Moreover, access to mental health services is often restricted for LGBTQIA+ UNIONS people, exacerbating these disparities.
5. Healthcare Disparities: Addressing healthcare disparities is essential, as LGBTQIA+ UNIONS individuals frequently encounter barriers to accessing gender-affirming healthcare, potentially resulting in adverse physical and mental health outcomes. Discrimination and bias from healthcare providers continue to impede LGBTQIA+ UNIONS individuals from seeking medical care, emphasizing the need for legal and policy changes to ensure equitable access to LGBTQIA+ UNION’s healthcare needs.

Conclusion:

In conclusion, the Supreme Court’s landmark ruling on LGBTQIA+ UNION’s rights in India stands as a significant milestone in the ongoing journey towards equality and justice. This momentous decision underscores the judiciary’s unwavering commitment to upholding constitutional values and advocating for the rights of LGBTQIA+ UNIONS individuals. The legal trajectory of LGBTQIA+ UNION’s rights in India, marked by milestones like the repeal of Section 377 and the introduction of protective legislation, reflects the evolving societal perspectives and the complexities of legal development. The Court’s judgment, segmented into various aspects, addressed marriage equality, anti-discrimination measures, protective provisions, and expert panel allocation. While the ruling brings freedom from legal repercussions for LGBTQIA+ UNIONS individuals and dismantles misconceptions, it also highlights the absence of marriage rights. This has led to mixed responses from LGBTQ activists, emphasizing the importance of continued advocacy. Challenges on the horizon include the pursuit of comprehensive legal recognition, marriage equality, the fight against discrimination, the provision of mental health support, healthcare equality, youth advocacy, violence prevention, stigma reduction, visibility amplification, and the fostering of global solidarity. Notably, the Supreme Court’s commitment to reviewing its judgment demonstrates its adaptability and dedication to addressing evolving societal understandings. It reflects a promising step forward in the ongoing struggle for LGBTQIA+ UNION’s rights in India, reaffirming the quest for justice and equality for all within its capacity and/or capability

 FAQ: Deciphering the Impact: India’s Supreme Court on LGBTQIA+ UNIONS Rights

 1. What was the key focus of the Supreme Court’s verdict on LGBTQIA+ UNIONS rights?

The verdict focused on acknowledging the discrimination and harassment faced by queer couples and issued directives to the Union Government to address these concerns. However, the Court did not grant legal recognition to same-sex marriages.

 2. Who comprised the bench for this ruling?

The five-judge bench included Chief Justice D.Y. Chandrachud and Justices Sanjay Kaul, Ravindra Bhat, Hima Kohli, and P.S. Narasimha.

 3. What significant historical milestones have marked the legal journey of LGBTQIA+ UNIONS rights in India?

Key milestones include:

– Decriminalization of consensual homosexual acts by the Delhi High Court in the Naz Foundation Case (2009).

– Re-criminalization in the Suresh Kumar Koushal Case (2013).

– Partial striking down of Section 377 by the Supreme Court in the Navtej Singh Johar Case (2018).

– Introduction of the Transgender Persons (Protection of Rights) Act (2019).

 4. Did the Supreme Court legalize same-sex marriages?

No, the Supreme Court did not legalize same-sex marriages. It refrained from altering the Special Marriage Act or introducing amendments to include same-sex marriages.

 5. What were the primary constitutional principles cited by the LGBTQIA+ UNIONS community in their plea?

The community’s plea revolved around the principles of equality (Article 14), non-discrimination (Article 15(1)), freedom of expression (Article 19(1)(a)), and rights to privacy and dignity (Article 21).

 6. What directive did the Supreme Court issue to the Union Government regarding LGBTQIA+ UNIONS?

The Court directed the government to establish a high-powered committee to address and investigate the concerns of LGBTQIA+ UNIONS individuals.

 7. How did the Supreme Court address the issue of discrimination against the LGBTQIA+ UNIONS community?

The Court issued a call to action for the government to take measures to combat discrimination, raise public awareness, and ensure non-discriminatory treatment in accessing goods and services.

 8. What protective measures did the Supreme Court suggest for LGBTQIA+ UNIONS individuals?

The Court suggested measures including:

– Establishing a dedicated hotline for support.

– Creating secure sanctuaries or safe houses.

– Protecting against police harassment and ensuring freedom of choice for LGBTQIA+ UNIONS individuals.

 9. What was the role of the expert panel proposed by the Centre?

The expert panel, led by the Cabinet Secretary, was tasked with formulating a comprehensive framework to extend rights and privileges to LGBTQIA+ UNIONS couples, excluding the right to marriage.

 10. What societal implications did the Supreme Court’s verdict have?

The verdict allowed LGBTQIA+ UNIONS individuals the liberty to engage in relationships without legal consequences but did not grant marriage rights, leaving them without legal recognition in family-related matters.

 11. How did LGBTQIA+ activists react to the Supreme Court’s ruling?

Reactions were mixed, with some celebrating the decision’s aspects and others expressing discontent over the lack of legal recognition for same-sex marriages.

 12. What ongoing challenges do LGBTQIA+ UNIONS individuals face?

Challenges include:

– Legal recognition of their rights.

– Marriage equality.

– Discrimination in various sectors.

– Mental health disparities.

– Healthcare access and equality.

13. What is the future outlook for LGBTQIA+ UNIONS rights in India?

The future involves continued advocacy for comprehensive legal recognition, fighting discrimination, supporting mental health, ensuring healthcare equality, and fostering global solidarity for LGBTQIA+ UNIONS rights.

14. What was the Supreme Court’s stance on the right to marry for LGBTQIA+ UNIONS individuals?

The Court emphasized that the right to marry is not considered a fundamental right and any changes to this domain should be determined by the Parliament, not the judiciary.

15. How did the Supreme Court ensure the protection of LGBTQIA+ UNIONS individuals from police harassment?

The Court directed that LGBTQIA+ UNIONS individuals should not be harassed by the police, and any complaints about restrictions on their freedom or potential violence must be promptly addressed and verified by the police.

16. What did the Supreme Court suggest regarding the rights of intersex individuals?

The Court affirmed the principle of individual autonomy for intersex individuals, ensuring no one should be coerced into operations or hormonal therapy without their explicit consent.