6 September 2018 was the day of liberation for the LGBT community, as a five-judge bench of the Supreme Court partially read down the colonial-era Section 377 of the IPC, which criminalised homosexuality.
However, once the jubilation post the judgment began to ebb, the question on everyone’s mind was: “What’s next for the community?”
Is it same-sex marriage and adoption rights for such couples? Is it the need to enforce and anti-discriminatory laws? Or is it the need to school all spheres of public and private life, to ensure that the judgment promising equal rights for the members of the community holds true?
The Quint reached out to some of the activists, lawyers and petitioners involved in the case against Section 377 to ask them about their next course of action.
While they addressed different factors, all were all adamant that while the fight had just begun, it in no way should take away from the “victory” that came to the community with the partial reading down of Section 377.
What’s the Immediate Next Step?
Challenging the existing discriminatory practices and policies against the LGBT community is the first course of action, post this judgment, says Siddarth Narrian, a lawyer based in Delhi.
Homosexuals can’t donate blood, they can’t nominate a same-sex partner if they are seeking insurance, same-sex couples can’t adopt children. Now after this judgment, in the next few years, all of these discriminatory provisions can be challenged.Siddarth Narrian
This, he says, will happen when the reality of what the judgment calls for – equality for members of the community within the greater Indian society – will be recognised and accepted by the society.
The public needs to be educated about Articles 14 and 15 of the Constitution, as cited by the judges of the Supreme Court, which says that the “State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India”, and prevents “ discrimination by the State, on the grounds of religion, race, caste, sex or place of birth or any of them”.
For this, it is essential that the judgment be publicised in all police stations and government offices.
“The law was used to harass people, now the official position can change,” Narrian says. This also includes the medical fraternity, who have to be educated regarding the judgment so that they are not allowed to "medically treat" and “cure” a homosexual person.
‘Educate the Educators’
For LGBT activist Harish Iyer, the need of the hour is to spread awareness regarding the judgment and tackle the problem of discrimination from the grass-root level. To him, it is essential that the “educators” be educated.
There is a need to educate teachers in school about LGBT rights and to normalise it, which in turn will help them teach their students to not discriminate and segmentalise.Harish Iyer
Both Narrian and Iyer also concurred that the “protection” that the Supreme Court’s verdict has promised the members of the community in public spaces should be implemented “legally, morally and socially”.
This protection against harassment must also extend to the private spaces, such as a private workspace. According to Iyer, just like the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 exists to ensure that women are protected in the workplace, a similar law must be created to serve the same purpose for members of the community.
Post 377, Focus on Trans Rights
Now that the main focal point of the struggle for the LGBT community, Section 377, is out of the way, its members can now focus on some other long-term issues.
To activist Romal Laisram, founder of the Queer Arts Movement in India, one of the first matters to be looked into, post the judgment, is the discrimination faced by transgender persons, both within and outside the LGBT community.
While the verdict favoured the LBG community, the fourth category – the transgender community – remains super marginalised. The first course of action is to focus on Trans Rights. With the focus on 377 for this long, transpeople have been sidelined, as a result of which they don’t usually like being categorised under the same queer umbrella.Romal Laisram
While the general acceptance of members of the transgender community, who are ostracised from all realms of society, is not something that is expected to be overturned overnight, it is a major social issue which needs to be addressed.
Marriage of same-sex couples and adoption rights are another crucial long-term challenge, the litigation for which needs to be addressed right now, according to the activists and petitioners.
Marriage Between Same-Sex Couples
Marriage is for property and progeny, says Romal Laisram.
“While progeny is out of the question, property isn't really a problem either, considering that there is no law which claims that two members of the same sex can’t acquire property or live together,” he says.
However, for those who want a marriage certificate, a legal recognition, a whole lot of litigation needs to start and it needs to start now.Romal Laisram
“...Considering that it took over two decades for the petition against Section 377 to be placed into action, one cannot expect a step like same-sex marriage to take place overnight. For now, we should just celebrate the judgment,” says Arundhati Katju, an advocate, who was a part of the petition against the law.
Same-Sex Marriage in the West Took Time Too
In countries like the United States, the United Kingdom, Australia, Germany and others, the process to legalise same-sex marriages also took time.
For instance, homosexuality was decriminalised in the United States on 26 June 2003, pursuant to the US Supreme Court ruling in Lawrence vs Texas. However, it was only on 26 June 2015 that all states recognised marriage between same-sex couples, as a result of the Supreme Court’s decision in the Obergefell vs Hodges ruling.
Similarly, although homosexuality was decriminalised in 1967 in England and Wales, in 1981 in Scotland and in 1982 in Northern Ireland, same-sex marriage was only legally recognised in England, Wales and Scotland in 2014. It is still not legalised in Northern Ireland, where it is recognised solely as a civil partnership.
It took the United States 12 years and England 47 years after homosexuality was decriminalised to legalise same-sex marriage.
Need for a Civil Union?
It’s difficult to bend the existing law to include marriage between same-sex couples, as currently India has over six different Acts pertaining to marriage laws. These are mostly based on religion and are unique to the same, for instance the “Hindu Marriage Act, 1955” or the “Muslim Personal Law (Shariat) Application Act, 1937”.
An alternative to marriage, which still allows legal recognition of same-sex couples, is civil union or partnership. Legislations which recognise these have been enacted in several states across the US and even in a few Latin American and European countries, Australia and New Zealand, an article by Nayantara Ravichandran states.
“The advantages of this model are that it faces less opposition, at least on religious grounds, and avoids the acrimonious debate as to whether ‘marriage’ is necessarily heterosexual. It has also functioned as a first step towards recognition of same-sex marriages,” she writes.
When asked about the possibility of same-sex couples being legally allowed to live in these kind of civil unions, the activists and petitioners said that it was definitely part of their course of action but that it would take time, much like it did in the rest of the world.
In reality, the Supreme Court’s judgment is just the beginning of the many victories that the community hopes lies ahead. As Varun Iyer, the youngest petitioner in the case, puts it: “It was the grand-slam of several moments that led up to this specific moment.”