EXPLORING LGBTQ+ FAMILY RIGHTS IN INDIA
By Vaishali, 2nd Year, LL.B., National Law School of India University, Bengaluru, India.
ABSTRACT
This essay explores the challenges faced by LGBTQ+ individuals within India's family law frameworks, emphasizing deficiencies in legal recognition and protection of familial rights. Within the broader context of Human Rights and Social Justice, the research highlights systemic inequities and the lack of legal acknowledgment that perpetuate significant injustices. By analysing cases and underlying legal principles, the essay exposes specific instances of exclusion and their legal implications. It scrutinizes judicial rulings that reveal systemic biases, such as Justice Pankaj Jain's remarks on same-sex couples and the Supreme Court's stance against same-sex unions, illustrating ingrained prejudices and legal disparities. A notable case from Kerala highlights how legal obstacles hinder LGBTQ+ partners from making end-of-life decisions and arranging funerals, underscoring the repercussions of non-recognition. Central to the discussion is the recognition of family as a fundamental human right essential for individual well-being. Denying this right to LGBTQ+ individuals contravene principles of equality and justice, highlighting emerging trends and contemporary legal issues. This study aims to enhance understanding of the hurdles LGBTQ+ individuals face in achieving legal acknowledgment and protection for their families in India, thereby contributing to the evolving discourse on family law and social justice.
Keywords- Human Rights, Social Justice, LGBTQ+, Equality, Systemic Inequities etc
I. INTRODUCTION
This essay explores the multifaceted landscape of LGBTQ+ family rights in India, examining legal frameworks, societal attitudes, and human rights obligations. It situates the issue within the broader context of international human rights instruments, highlighting the significant role of family in societal cohesion and individual development. In doing so, the essay addresses crucial aspects of Human Rights and Social Justice while also discussing emerging trends and contemporary legal issues.
The subsequent sections critically analyse seminal judicial pronouncements that have shaped LGBTQ+ rights in India. Landmark cases such as Naz Foundation v. Government of NCT of Delhi (2009), NALSA v. Union of India (2014), and Navtej Singh Johar v. Union of India (2018) have contributed to legal advancements, including the recognition of transgender individuals as the 'third gender' and the decriminalization of same-sex relations among consenting adults. However, recent judgments, exemplified by Supriyo v. Union of India, underscore persistent gaps in the legal framework concerning familial rights, particularly the absence of legalized same-sex marriage.
Drawing on philosophical and socio-political theories, including perspectives from Plato, Aristotle, and Marx, this essay examines the conceptual underpinnings of familial rights and societal evolution. It underscores the dynamic nature of societal norms and the imperative of accommodating diverse perspectives to effectively address the rights of marginalized communities.
Furthermore, the essay explores the intersectionality of legal biases and societal attitudes within the judicial sphere, highlighted by instances of judicial prejudice and systemic inadequacies. It sheds light on the challenges faced by LGBTQ+ individuals, including instances of corrective rape and denial of fundamental rights, such as the right to family cohesion and recognition.
By analysing these issues, this essay seeks to contribute to the discourse on LGBTQ+ family rights in India, advocating for comprehensive legal reform and societal acceptance. Ultimately, it emphasizes the urgent need to bridge the gap between international human rights standards and domestic practices, ensuring equal recognition and protection for all individuals, regardless of sexual orientation or gender identity.
The concept of family denotes a group comprising two or more persons related by birth, marriage, or adoption who cohabit together.[1] International human rights instruments recognize the ‘family’ as the fundamental unit of society, encompassing a range of rights and obligations crucial for societal cohesion.[2] However, in India, a segment of society faces complete denial of the right to family, namely the LGBTQ+ community.
Significant legal advancements have been witnessed in India pertaining to the recognition of LGBTQ+ rights, as underscored by seminal judicial pronouncements. Notably, the case of Naz Foundation v. Government of NCT of Delhi (2009)[3] witnessed the Delhi High Court asserting that Section 377 of the IPC cannot be invoked to prosecute consenting adults for sexual conduct, emphasizing the inherent right to privacy enshrined within Article 21 of the Constitution. This judgment further reinforced the legal protections afforded to LGBTQ+ individuals against discriminatory legislation.
Similarly, the case of NALSA versus Union of India (2014)[4] stands out, wherein the Supreme Court rendered a landmark judgment affirming transgender individuals as the 'third gender' and asserting their entitlement to the same fundamental rights guaranteed by the Constitution of India.
Moreover, the pivotal ruling in Navtej Singh Johar v. Union of India (2018)[5] marked a watershed moment in Indian legal history by unanimously striking down Section 377 of the Indian Penal Code, thereby decriminalizing same-sex relations among consenting adults. This decision was instrumental in dismantling legal barriers that had long oppressed the LGBTQ+ community.
However, amidst these strides, the recent judgment in Supriyo v. Union of India[6] underscored a setback for the LGBTQ+ community, as it failed to legalize same-sex marriage. This ruling highlighted a significant gap in the legal framework pertaining to familial rights, raising questions about the comprehensive recognition of LGBTQ+ rights within Indian jurisprudence. Collectively, these judicial pronouncements represent crucial milestones in the ongoing struggle for LGBTQ+ rights in India, yet they also reveal the nuanced complexities and ongoing challenges inherent in achieving full legal equality and societal acceptance for the community.
Despite these legal recognitions, the LGBTQ+ community remains excluded from the institution of marriage, as it is not constitutionally deemed a fundamental right. This raises pertinent questions regarding the differential treatment they receive compared to the broader populace. Why is the qualifier of "fundamental" applied selectively to their rights, while others are not subject to such scrutiny?
While the right to marry may not be explicitly classified as fundamental, the right to family undoubtedly holds such status. The denial of these rights to LGBTQ+ individuals represent a significant violation of human rights, depriving them of essential social and legal recognition and protection. Members of the LGBTQ+ community are particularly disadvantaged in scenarios where societal ostracization and familial disownment leave them isolated, exacerbating their vulnerability and perpetuating a cycle of exclusion and marginalization.
Even in instances where familial support is retained, the inability to marry precludes the formation of a family unit, a privilege readily accessible to heterosexual individuals. This exclusion from the institution of marriage not only denies LGBTQ+ individuals the legal benefits and social recognition associated with it but also undermines their dignity and equality. It starkly highlights the systemic inequities persisting within the legal framework, reflecting broader societal prejudices.
The contemporary issue at hand involves the violation of human rights, as LGBTQ+ individuals are denied their right to family life and the legal recognition conferred by marriage. This denial contravenes international human rights standards, which advocate for the protection of family life and equality for all individuals, irrespective of sexual orientation or gender identity. By failing to recognize same-sex marriages, the legal system perpetuates discrimination and infringes upon the fundamental human rights of LGBTQ+ individuals.
Addressing these issues necessitates a comprehensive approach encompassing legal reforms to recognize and protect the familial rights of LGBTQ+ individuals, alongside efforts to combat societal prejudices and promote acceptance. Ensuring equal recognition and protection for LGBTQ+ families is not only a matter of legal justice but also a crucial step toward achieving social justice and human rights for all.
Consequently, the prevailing social narrative not only perpetuates the marginalization of the LGBTQ+ community but also undermines their fundamental human right to family cohesion. This systemic disenfranchisement underscores the pressing need for comprehensive legal reform to afford equal recognition and protection to all citizens, regardless of sexual orientation or gender identity.
Plato's "Republic"[7] elucidates a societal construct where the family serves as the foundational unit, underpinning subsequent communal and political structures. In parallel[8], Aristotle posited that the individual's affiliation with a family precedes their integration into broader communities, thereby influencing societal and political dynamics. This conceptual framework suggests that the fulfilment of foundational conditions fosters constructive development in subsequent societal expansions. Furthermore, Marx’s theoretical framework on the social paradigm posits that society perpetually engages in a constant struggle towards realizing an ideal state, thereby continually progressing. Synthesizing Marx's perspective with the insights of political theories such as those espoused by Plato and Aristotle emphasizes the inherent dynamism of societal evolution.[9] From this composite viewpoint, it becomes evident that societal norms and ideals are in a state of constant flux, necessitating ongoing adaptation from the social fabric.
Moreover, extrapolating this dynamic understanding to contemporary issues, such as the familial rights of the Queer community, mandates a nuanced approach. By recognizing the fluid nature of societal ideals and the imperative of accommodating diverse perspectives, it becomes imperative for society to conscientiously address and uphold the rights of marginalized communities, which here in this case is the Queer population.
While there has been discernible societal progress in the acceptance of queer individuals, it is important to acknowledge that such strides remain incomplete. Persistent biases against the queer community persist not only within broader social contexts but also within the judicial sphere. There have been instances where judicial actors have exhibited predispositions aligning with prevailing societal biases against queer individuals. Recently the incident involving Justice Pankaj Jain of the Punjab and Haryana High Court, responding to a Habeas Corpus petition filed by a woman claiming to be in a same-sex relationship, underscores complex intersections of legal, ethical, and societal attitudes towards queer individuals within the judicial domain.[10]
The petition, brought forth by a 23-year-old woman asserting that her 19-year-old partner was being unlawfully confined by her parents in Uttar Pradesh, reflects a recurring theme across various Indian courts, where similar petitions of this nature have been adjudicated favourably.[11] However, Justice Jain's reaction to the case starkly contrasts with prevailing judicial trends. His outburst, dismissing the matter as an "immoral thing" and demonstrating a clear bias against queer couples, raises significant concerns regarding judicial impartiality and adherence to constitutional principles. Furthermore, Justice Jain's assertion that "constitutionality and morality are not different" reflects a troubling conflation of personal moral beliefs with legal reasoning, potentially compromising the objective application of law.
Beyond judicial biases, systemic inadequacies within the legal framework compound challenges faced by the queer community. The absence of legal recognition of marriage rights for queer individuals not only denies them access to fundamental rights associated with marriage but also undermines their societal validity and legitimacy. Consequently, essential rights and privileges integral to couples, regardless of sexual orientation, remain inaccessible to queer couples.
Of paramount concern is the lack of legal recognition and validity afforded to queer relationships. This absence not only impedes the societal integration and functioning of this demographic but also restricts their ability to assert rights commensurate with those enjoyed by heterosexual couples. Notably, crucial rights such as adoption are precluded, exacerbating disparities in legal standing and societal acceptance.
In the recent legal case of Jebin Joseph v. The State of Kerala[12], a poignant situation unfolded, highlighting the challenges faced by same-sex couples in asserting their rights, even in the solemn event of bidding farewell to a loved one. Manu, surviving partner of Jebin Joseph, encountered significant hurdles as he sought to fulfill the basic human need of arranging Jebin's funeral rites.
Jebin's family, who had previously disowned him due to his sexual orientation, initially refused to claim his body. Consequently, Manu found himself entangled in a bureaucratic and emotional ordeal, navigating various legal channels in an attempt to gain authorization to perform Jebin's last rites. Tragically, Jebin's remains languished in the mortuary for six days, while Manu valiantly struggled against the legal and societal barriers obstructing his path to closure.
Despite Manu's efforts to seek justice through legal recourse, the court's intervention only extended to persuading Jebin's blood relatives to take responsibility for his funeral arrangements. This intervention, however, ultimately remained at the discretion of Jebin's estranged family. The stark contrast in treatment between heterosexual couples and same-sex partners underscores a systemic discrimination perpetuated by the state.
The denial of fundamental rights to the LGBTQ+ community, exemplified by Jebin's ordeal, not only inflicts profound emotional anguish on individuals but also exposes systemic biases within legal frameworks. In death, as in life, Manu's experience serves as a poignant reminder of the enduring struggle for equality and dignity faced by marginalized communities.
Instances of rights denial extend beyond the legal realm, as evidenced by the phenomenon of corrective rape perpetrated against individuals within the LGBTQ+ community. Termed by UNESCWA[13] as corrective rape, this form of sexual violence specifically targets individuals based on their sexual orientation or gender identity. Its primary objective is to coerce the victim into adhering to heteronormative standards or conventional gender identities. This egregious form of violence not only violates the bodily autonomy and integrity of the victim but also reflects deeply entrenched societal attitudes that seek to enforce conformity to prevailing sexual and gender norms through coercive means.[14]
The crisis intervention team of the LGBT Collective in India's Telangana state had revealed disturbing findings regarding "corrective rapes" targeting individuals in the LGBTQ+ community. Over a span of five years, 15 cases have been reported, likely representing only a fraction of the actual occurrences due to underreporting. These rapes are often perpetrated by family members, adding layers of complexity and fear for the victims, who are typically reluctant to seek legal assistance. Shockingly, parents are often complicit or aware of these crimes, as the perpetrators are frequently chosen relatives. The rapes are carried out under the guise of "discipline" or "correction" to "cure" homosexuality, particularly within communities where cousin marriages are prevalent. This harrowing practice underscores the urgent need for greater awareness, support, and protection for LGBTQ+ individuals in India, as well as robust legal measures to hold perpetrators and accomplices accountable for these abhorrent acts of violence and discrimination.
Despite the initial reporting of cases, subsequent revelations indicate a significant underreporting of instances of violence perpetrated against the queer community, often stemming from their sexual orientation or gender identity. These acts of violence, including corrective rapes, underscore a pervasive societal bias that seeks to "cure" individuals of their queer identities through forceful means. Despite advancements in the legal sphere, such as the decriminalization of same-sex relationships, societal prejudices continue to impede the realization of fundamental rights for queer individuals. Within the framework of democracy, the legitimacy of the state is derived from the acceptance of its principles by the populace. Consequently, societal biases pose formidable barriers to the recognition of familial rights for the queer community.
According to Article 10(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)[15], the family is recognized as the fundamental unit of society and is entitled to comprehensive protection and support, particularly in its role in child-rearing and education. Moreover, marriage should be based on the voluntary consent of both parties. India, as a signatory to the ICESCR, is bound by Article 2(2), which mandates the elimination of discrimination in the exercise of economic, social, and cultural rights based on various factors including race, gender, religion, and social status.[16] However, despite these obligations, there are deficiencies in granting the queer community the right to form families, highlighting a gap between international standards and domestic practices.
The discourse on LGBTQ+ family rights in India highlights the overlap of legal, societal, and human rights dynamics. Despite notable legal advancements and landmark judicial pronouncements, significant challenges remain in achieving equal recognition and protection for the LGBTQ+ community. The absence of legalized same-sex marriage, alongside systemic biases within the judiciary and prevailing societal attitudes, underscores the enduring struggle for equality and dignity faced by marginalized groups.
Instances of corrective rape and the denial of fundamental rights exemplify the pervasive societal bias and systemic inadequacies that obstruct the realization of LGBTQ+ rights in India. These issues underscore the urgent need for comprehensive legal reforms, societal acceptance, and heightened awareness to address the systemic discrimination and violence encountered by LGBTQ+ individuals.
Moreover, the discrepancy between international human rights standards and domestic practices highlights the necessity of bridging this gap to ensure equal recognition and protection for all individuals, irrespective of sexual orientation or gender identity. Analyzing the multifaceted landscape of LGBTQ+ family rights reveals that achieving full legal equality and societal acceptance requires coordinated efforts from stakeholders across legal, social, and political spheres.
The struggle for LGBTQ+ rights in India is ongoing and necessitates continuous dialogue, advocacy, and action to dismantle systemic barriers and fully realize familial rights for all individuals. Through collective efforts, we can strive toward a society that upholds the principles of equality, dignity, and inclusion for everyone, regardless of their sexual orientation or gender identity.
BIBLIOGRAPHY
1. Aristotle, Politics: A Treatise on Government, Project Gutenberg (Eric Eldred & David Widger eds., 2009), https://www.gutenberg.org/files/6762/6762-h/6762-h.htm.
2. Karl Marx, The Communist Manifesto (Pluto Press 1996).
3. Dawn, 'Corrective Rape' Used in India to 'Cure' Homosexuality, Dawn (June 2, 2015), https://www.dawn.com/news/1185745
4. Health Resources and Service Administration, Definition of Family, HRSA (Oct. 2023), https://www.hrsa.gov/get-health-care/affordable/hill-burton/family.
5. Hindustan Times, 'Immoral Thing': Row Erupts After HC Judge's Homophobic Remarks, Hindustan Times (July 2024), https://www.hindustantimes.com/india-news/immoral-thing-row-erupts-after-hc-judge-s-homophobic-remarks-101705088215143.html
6. Live Law, Punjab & Haryana High Court: Same-Sex Relationship, Queer Discrimination - Justice Pankaj Jain, Live Law (July 2024), https://www.livelaw.in/high-court/punjab-and-haryana-high-court/punjab-haryana-high-court-same-sex-relationship-queer-discrimination-justice-pankaj-jain-246584.
7. Plato, The Republic (Books, Inc. 1943)
8. UN Women, A Contemporary View of ‘Family’ in International Human Rights Law and Implications for the Sustainable Development Goals (SDGs), UN Women – Headquarters (Dec. 2017), https://www.unwomen.org/en/digital-library/publications/2017/12/a-contemporary-view-of-family-in-international-human-rights-law
9. United Nations Economic and Social Commission for Western Asia (ESCWA), Corrective Rape, UN ESCWA, https://www.unescwa.org/sd-glossary/corrective-rape (last visited July 28, 2024).
10. United Nations, International Covenant on Economic, Social and Cultural Rights, OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights (last visited July 28, 2024).
Table of Cases
1. Jebin Joseph v. State of Kerala, 2022 SCC OnLine Ker 6158
2. NALSA versus Union of India AIR 2014 SC 1863
3. Navtej Singh Johar v. Union of India 2019 (1) SCC (CRI) 1
4. Naz Foundation v. Government of NCT of Delhi 2009 (6) SCC 712
5. Supriyo v. Union of India W.P.(C) No. 1011/2022
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[1] Health Resources and Service Administration, Definition of Family, HRSA (Oct. 2023), https://www.hrsa.gov/get-health-care/affordable/hill-burton/family.
[2] UN Women, A Contemporary View of ‘Family’ in International Human Rights Law and Implications for the Sustainable Development Goals (SDGs), UN Women – Headquarters (Dec. 2017), https://www.unwomen.org/en/digital-library/publications/2017/12/a-contemporary-view-of-family-in-international-human-rights-law.
[3] Naz Foundation v. Government of NCT of Delhi 2009 (6) SCC 712.
[4] NALSA versus Union of India AIR 2014 SC 1863.
[5] Navtej Singh Johar v. Union of India 2019 (1) SCC (CRI) 1.
[6] Supriyo v. Union of India W.P.(C) No. 1011/2022.
[7] Plato, The Republic (Books, Inc. 1943).
[8] Aristotle, Politics: A Treatise on Government, Project Gutenberg (Eric Eldred & David Widger eds., 2009), https://www.gutenberg.org/files/6762/6762-h/6762-h.htm.
[9] Karl Marx, The Communist Manifesto (Pluto Press 1996).
[10] Live Law, Punjab & Haryana High Court: Same-Sex Relationship, Queer Discrimination - Justice Pankaj Jain, Live Law (July 2024), https://www.livelaw.in/high-court/punjab-and-haryana-high-court/punjab-haryana-high-court-same-sex-relationship-queer-discrimination-justice-pankaj-jain-246584.
[11] Hindustan Times, 'Immoral Thing': Row Erupts After HC Judge's Homophobic Remarks, Hindustan Times (July 2024), https://www.hindustantimes.com/india-news/immoral-thing-row-erupts-after-hc-judge-s-homophobic-remarks-101705088215143.html.
[12] Jebin Joseph v. State of Kerala, 2022 SCC OnLine Ker 6158.
[13] United Nations Economic and Social Commission for Western Asia (ESCWA), Corrective Rape, UN ESCWA, https://www.unescwa.org/sd-glossary/corrective-rape (last visited July 28, 2024).
[14] Dawn, 'Corrective Rape' Used in India to 'Cure' Homosexuality, Dawn (June 2, 2015), https://www.dawn.com/news/1185745.
[15] United Nations, International Covenant on Economic, Social and Cultural Rights, OHCHR, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-economic-social-and-cultural-rights (last visited July 28, 2024).
[16] Ibid.