By Dr Abhishek Atrey
Recently, the Kerala High Court in a matter relating to the live-in relationship of two girls directed them to undergo counselling, against which the Supreme Court issued notice and granted stay. This order has triggered a new debate on the rights of the LGBT community in India.
The LGBT community here has always faced a very hostile behaviour from society. Whenever a family comes to know that their son or daughter is lesbian or gay or transgender, they start feeling ashamed of him or her. The moment physical changes start being visible, the families of such children start saving such a child from the eyes of the society. They stop sending him/her to play with other children of his/her age. In school or college, it becomes quite impossible for such a child to study due to bullying by other children. The hostility does not end here.
Even after all such adversaries, if such a child succeeds in getting some education, it is again very difficult for him/her to get a job in any private or government sector. There are no seats reserved for them in any industry or service. As a result, the majority of transgenders and other people of the LGBT community are being compelled to survive on begging or prostitution.
In ancient times, the LGBT community was well recognised, and one example of this is Shikhandi in Mahabharata. Arjuna could succeed in killing Bhishma Pitamah only by taking Shikhandi’s help. In the pictures depicted in Khajuraho or Ajanta Elora, one can find lesbians and gays. Even in the Mughal period, there are several examples of rulers having transgenders in their inner circle.
These examples show that during those periods, LGBTs were not being seen as people of shame. It was only during the British period in 1862 when Section 377 was inserted in the Indian Penal Code (IPC) which criminalised same sex relationship, even with consent.
The LGBT community had to fight a long battle to regain their rights, which were given to them by the Delhi High Court in 2009 in the case of Naz Foundation and the same was affirmed by the Supreme Court in 2018 in the case of Navtej Singh Johar, in which a five-judge Constitution bench unanimously struck down Section 377 of the IPC by declaring it to be violative of Articles 14, 15 and 21 of the Constitution. The result of these judgments is that now a same-sex relationship or a live-in relationship of two same sex persons is legal in India.
In another judgment of NALSA in 2014, the Supreme Court acknowledged the rights of the transgenders as the “Third Gender” and the non-binary identities and directed the government to treat them as minorities and provide them reservation in jobs, education and other amenities. Thereafter, in all educational services and other sectors and in application forms, there is a third column of “others” after male and female.
Recently, the Supreme Court collegium recommended Saurabh Kirpal, senior advocate, to be elevated as a judge in the Delhi High Court, which was not accepted by the central government on the ground that he openly admitted being gay and a strong supporter of LGBT rights. This objection of the central government was rejected by the Supreme Court collegium and his name was again recommended for elevation on the ground that sexual orientation of a person cannot be a reason for rejection. After positive views from the judiciary, cinema, media, entertainment industry, NGOs, intellectuals and reputed persons, the LGBT community has now started demanding recognition of same sex marriage and the rights arising out of such marriage.
Till 2017, a total of 29 countries have legally recognised same sex marriage. In 2000, the Netherlands became the first country to recognise same sex marriage through a parliamentary legislation. This was followed by Belgium in 2003, Canada and Spain in 2005, South Africa in 2006, Norway in 2008, Sweden in 2009, Iceland, Portugal and Argentina in 2010, Denmark in 2012, Uruguay, New Zealand, France, Brazil, England and Wales in 2013, Scotland in Luxembourg in 2014, Finland, Ireland, Greenland and USA in 2015, Columbia in 2016, and Germany Malta and Australia in 2017.
Even after all these developments across the world, the battle of LGBT community for their right to marry goes on in India. We should not forget that a majority of Indians are still conservative with regard to family, society, caste, community and religion. The community bonding of Indians is much stronger than communities in most other countries.
A majority of Indians have faith in their religious preachings, whether they are Hindus or Muslims. Unlike European or Western countries, in India and especially in Hindus, marriage is considered a sacrosanct union of two persons. It is not only a union of two persons, but also a union of two families. The families of both the bride and groom celebrate the occasion of marriage as a festival in their family. Therefore, marriages cannot be said to be a private affair as in the case of live-in relationships and is a big public and social affair. No doubt, sex is one of the most important part of a marriage, but the main purpose of marriage is to give birth to a new generation, to handover a surname to the next generation, which is not possible in same sex marriages. The same sex couples cannot produce biological children, who can keep alive the name of their family after them.
Apart from marriage, the other big hurdles in granting marriage status to same sex couples will come while defining laws of adoption, guardianship and succession for same sex couples. People of India cannot trust to handover a girl child in adoption to a gay couple. Even if lawmakers of India or the judiciary give the right to marry, right of succession, right of adoption or right of guardianship to the people of the LGBT community, the society at large will never recognise such rights.
We should not forget that we live in a country where women had been given equal rights in the properties of their parents by Hindu Succession Act in 1955, but even today after a lapse of more than 70 years, parents do not give their properties to their daughters. Parents often write a will to bequeath their properties to their sons so that after their death, their daughters cannot claim any right in their properties against their brothers, and where parents die intestate, the brothers ignore objections from their sisters and divide all the properties among themselves. If any of the sisters claim any right in ancestral property, their brothers boycott them socially or they are ostracised.
It is thus still a distant dream that Indian society will ever accept same sex marriages, regardless of the legal status.
—The writer is Advocate-On-Record, Supreme Court