From UPSC perspective, the following things are important :
Prelims level : Article 15
Mains level : Paper 2- Rights of sexual minority
The article highlights the plight of sexual minorities despite the landmark judgments by the Supreme Court.
Role played by the judiciary
- The Delhi High Court’s verdict in Naz Foundation vs Government of NCT of Delhi (2009) was a landmark in the law of sexuality and equality jurisprudence in India.
- The court held that Section 377 offended the guarantee of equality enshrined in Article 14 of the Constitution, because it creates an unreasonable classification and targets homosexuals as a class.
- In a retrograde step, the Supreme Court, in Suresh Kumar Koushal vs Naz Foundation (2013), reinstated Section 377 to the IPC.
- However, the Supreme Court in Navtej Singh Johar & Ors. vs Union of India (2018) declared that the application of Section 377 IPC to consensual homosexual behaviour was “unconstitutional”.
- This Supreme Court judgment has been a great victory to the Indian individual in his quest for identity and dignity.
- It also underscored the doctrine of progressive realisation of rights.
No legal sanction to same-sex marriage
- Despite the judgments of the Supreme Court, there is still a lot of discrimination against sexual minorities in matters of employment, health and personal relationship.
- The Union of India has recently opposed any move to accord legal sanction to same-sex marriages in India.
- The Union of India stated that the decriminalisation of Section 377 of the Indian Penal Code does not automatically translate into a fundamental right for same sex couples to marry.
- The U.S. Supreme Court, in Obergefell vs Hodges (2015) underscored the emotional and social value of the institution of marriage and asserted that the universal human right of marriage should not be denied to a same-sex couple.
- Indian society and the state should synchronise themselves with changing trends.
Need to amend Article 15 to prohibit discrimination based on gender or sexual orientation
- Article 15 secures the citizens from every sort of discrimination by the state, on the grounds of religion, race, caste, sex or place of birth or any of them.
- The grounds of non-discrimination should be expanded by including gender and sexual orientation.
- In May 1996, South Africa became the first country to constitutionally prohibit discrimination based on sexual orientation.
- The United Kingdom passed the “Alan Turing law” in 2017 which ‘granted amnesty and pardon to the men who were cautioned or convicted under historical legislation that outlawed homosexual acts’.
- Justice Rohinton F. Nariman had directed in Navtej Singh Johar & Ors., the Government to sensitise the general public and officials, to reduce and finally eliminate the stigma associated with LGBTQ+ community through the mass media and the official channels.
- School and university students too should be sensitised about the diversity of sexuality to deconstruct the myth of heteronormativity.
- Heteronormativity is the root cause of hetero-sexism and homophobia.
It is time for change, but the burden should not be left to the powers that be. The onus remains with the civil society, the citizenry concerned and the LGBTQ+ community itself.