More inclusive India coming, can’t wish it away

On September 6, the Supreme Court made history by decriminalising sex amongst consenting adults in private. The judgement of Suresh Kumar Koushal, pronounced in December 2013, was specifically and rightly overruled and the judgement of the Delhi High Court in Naz Foundation practically restored.

With this judgement, we, in India, have attained our second freedom. For, the LGBTQI communities continued to be persecuted after Independence under Sec. 377. Now, the judgement has at last freed all of us from the yoke of that colonial law.

Importantly, all the four judgements of Justice Dipak Mishra and Justice Khanwilkar, Justice Nariman, Justice Chandrachud and Justice Malhotra concurred on a number of key points. They noted that it is constitutional morality, and not the popular morality, that would prevail in our society. Constitutional morality is the values enshrined in the Preamble: Justice (social, economic and political), Liberty, Equality and Fraternity; and in Articles 14 and 15 (equality and discrimination), Article 19 (fundamental freedoms) and Article 21 (privacy, health and dignity). This is the basis on which Sec. 377 has been read down.

To decide what next, it is important to appreciate that this is indeed a watershed moment in our society. It augurs profound change in our society. It will usher in a new India, an inclusive India, which indeed is the need of the hour. As the Supreme Court itself states, the judgement is only the first step.

Over time, one will see the LGBTQI communities coming into their own. There will be a lot of attention in the media to the activities of these communities. Take, for instance, LGBTQI film festivals. Till now, they have been on the margins. Soon, they will rightly become part of the mainstream. Others will learn more about the communities. A new equilibrium of respect will develop between the communities.

At a personal level, family members, who have been apprehensive about inviting LGBTQI couples as couples to dinners and parties, will now feel emboldened to invite such couples. They will also feel stronger to disclose the relationships of their kith and kin to larger family networks. Guess who is coming to dinner will now extend from race to the LGBTQI communities.

It will also throw up several challenges on equality and non-discrimination. The LGBTQI communities will demand their rightful share in all spheres of life, in public places, in employment, in education, and in all other spheres in the public and especially the private sector. Unfortunately, there is no law to address equality and discrimination in the private sector at the moment. As equality and anti-discrimination is the core of Human Rights and over-arching values, there is no reason why a general and comprehensive anti-discrimination law should not be put in place to address equality and discrimination in the private sector, addressing sex, gender, caste, religion, ethnicity, marginalisation. That is an urgent need.

Similarly, the laws on sexual offences are inadequate, whether it is rape or sexual harassment. They are both gender-specific. Thus, only a man can rape a woman or only a man can sexually harass a woman. The law is inadequate to address non-consensual sex other than the binary man-woman sex. Rape within the LGBTQI is simply invisible to the law. After the judgement, a man being raped by another man can proceed under Section 377, but not rape. Likewise, a transgender person or woman being subject to non-consensual sex by another transgender person or a woman has no recourse to law at all. Ironically, the POCSO (child rape law) is gender neutral. There is all the reason that the rape law should be made gender-neutral.

The same goes for sexual harassment law, which is again gender-specific. There will be a push for that, too. Thus, laws on sexual offences will have to change.

The demand for a same-sex marriage law has already come. The situation today is that a man marrying another man abroad, where same sex marriages are legal, and the two coming to India is becoming quite common. The government has turned a blind eye to this. But the question is, for how long can the government do this? Can such relationships be denied or not recognised?

Well, the government may not have much of a choice. Sooner or later, such marriages are bound to come to court and their legal recognition will be an issue. Considering the strong emphasis that the Supreme Court has laid down on equality and non-discrimination between the “mainstream” and LGBTQI communities, it will be difficult for a court to say that same-sex marriages are not recognised.

Guardianship and adoption present a simpler picture. Personal laws based on religion govern them. Adoption from a Hindu parent to another parent does not require the imprimatur of the court. It can be done by a private deed. In other cases, where the court is involved, it will be difficult for the court to say that a person cannot adopt another person because the adoptive person is of the LGBTQI communities.

In the case of inheritance, as the same is in accordance with personal laws relating to religion, they will have to change. Thus, the Sec. 377 judgement affects us all not only in the values that it enunciates and reiterates from our Constitution, but also in the consequences that are bound to follow.

All in all, new challenges will be thrown up. It is better to welcome the challenges and correct the historical injustices rather than wishing them away.

(Anand Grover is a senior advocate and Director, Lawyers Collective; Tripti Tandon is Deputy Director, Lawyers Collective)