The LGBTQ+ community has been marginalised across the world for a long time now. In India too, the right for the rights of the community has been a long drawn out one with little to no improvements. However, this is changing albeit slowly.
This debate aside, there is a need for a Uniform Civil Code from the perspective of the LGBTQ+ community. The LGBTQ+ community living in India, has all the rights that any other person living in India has. They have an equal right to enforce their fundamental rights as well. However, there is an issue that needs to be looked into. While having the same rights, they cannot enforce them the same way. It is sad that while the Supreme Court has pronounced judgements stating that the LGBTQ+ community have rights, they do not have a way to enforce them through statutory provisions, because those are not written or worded in a way which would include their rights, especially when it comes to family law.
Let’s see how this situation came to be. To understand this situation, we need to understand and analyse some of the judicial decisions of the Supreme Court.
It can be said that one of the first breakthroughs made by the Indian Judiciary with respect to the Transgender rights was in the case of National Legal Services Authority v. Union of India[1]. This is a case where the SC comprehensively stated that Transgenders have all the same rights that any other person has in India. The Supreme Court stated, “Article 14 of the Constitution ensures equal protection and hence imposes a positive obligation on the State to ensure equal protection of laws by bringing in necessary social and economic changes, so that everyone including TGs may enjoy equal protection of laws and nobody is denied such protection. Article 14 does not restrict the word ‘person’ and its application only to male or female. Hijras/transgender persons who are neither male/female fall within the expression ‘person’ and, hence, are entitled to legal protection of laws in all spheres of State activity, including employment, healthcare education as well as equal civil and citizenship rights, as enjoyed by any other citizen of India.”[2] The Supreme Court went on to state the importance of Article 19(1)(a) and how it is important for the expression of Transgenders as well. The Court also reiterated the importance of Article 21 by stating, “Article 21 is the heart and soul of the Indian Constitution, which speaks of the rights to life and personal liberty… Article 21 takes all those aspects of life which go to make a person’s life meaningful. Article 21 protects the dignity of human life, one’s personal autonomy, one’s right to privacy, etc. Right to dignity has been recognised to be an essential part of the right to life and accrues to all persons on account of being humans. The recognition of one’s gender identity lies at the heart of the fundamental right to dignity. Gender constitutes the core of one’s sense of being as well as an integral part of a person’s identity. Legal recognition of gender identity is, therefore, part of right to dignity and freedom guaranteed under our Constitution. Article 21 guarantees the protection of ‘personal autonomy’ of an individual. Personal autonomy includes both the negative right of not to be subject to interference by others and the positive right of individuals to make decisions about their life, to express themselves and to choose which activities to take part in.”[3] Through this case, the SC also took a stand that transgenders had the right to identify themselves as the third gender. The Supreme Court also noted that the Fundamental rights as enumerated in Part III of the Constitution do not exclude transgenders from their ambit but the Indian law on the whole recognise the paradigm of binary genders of male and female. This is where the issue lies.
Another case that led up to the situation that the LGBTQ+ community is in today, is the section 377 judgement. This is the case where the constitutionality of section 377 of the Indian Penal was challenged. Previously when this issue was raised in the Naz foundation case, the Delhi High Court had taken a progressive stand but the judgement was reversed in the Supreme Court. In the case of Navtej Singh Johar v. Union of India[4], the Supreme Court looked at the transformative power of the Constitution and Constitutional Morality and how such morality is different from public morality. Section 377 of the IPC was partially struck down. The SC stated, “Section 377 IPC, so far as it penalises any consensual sexual relationship between two adults, be it homosexuals (man and a man), heterosexuals (man and a woman) or lesbians (woman and a woman), cannot be regarded as constitutional… Testing Section 377 IPC on the principles evolved under Articles 14, 19 and 21 of the Constitution, it is clear that it neither withstands the sanctity of dignity of an individual, expression of choice, paramount concept of life, nor it allows an individual to lead to a life that one’s natural orientation commands.”[5] “Given our judgment in K.S. Puttaswamy, (2017) 10 SCC 1, in particular, the right of every citizen of India to live with dignity and the right to privacy including the right to make intimate choices regarding the manner in which such individual wishes to live being protected by Articles 14, 19 and 21, it is clear that Section 377 IPC, insofar as it applies to same sex consulting adults, demeans them by having them prosecuted instead of understanding their sexual orientation and attempting to correct centuries of stigma associated with such persons.”[6] The SC while mentioning the evolution of society and the reasons people choose to come together has stated, “With the passage of time and evolution of the society, procreation is not the only reason for which people choose to come together, have live-in relationships, perform coitus or even marry. They do so for a while lot of reasons including emotional companionship. In the contemporary world where even marriage is now not equated to procreation of children, the question that would arise is whether homosexuality and carnal intercourse between consenting adults of opposite sex be tagged as ‘against the order of nature’. It is freedom of choice of two consenting adults to perform sex for procreation or otherwise and if their choice is that of the latter, it cannot be said to be against the order of nature.”[7]
Another important case in point is that of Arunkumar and Anr v. Inspector General of Registration and Others[8]. This is a case where the marriage between a man and a transwoman as conducted under the Hindu Marriage Act, 1995 was not registered by the Registrar of Marriages. The Court held that the marriage was valid and stated that, “A marriage solemnized between a male and a transwoman, both professing Hindu religion, is a valid marriage in terms of Section 5 of the Hindu Marriage Act, 1955 and the Registrar of Marriages is bound to register the same. By holding so, this Court is not breaking any new ground. It is merely stating the obvious. Sometimes to see the obvious, one needs not only physical vision in the eye but also love in the heart.”[9]
Through these cases, the Indian Judiciary has slowly and steadily taken a stand that it is important to look at the matter of rights of the LGBTQ+ community. The Judiciary has stated that the LGBTQ+ community is entitled to the same rights that any other person has. It should be noted that the Judiciary alone can make a difference to only a certain extent.
The laws are not in favour of this community enforcing their rights without having to go to court every time. The Judiciary and the Legislature need to work in tandem to realise the enforcement of rights of the LGBTQ+ community. The Legislature needs to do its part to help and it has a fair share of work to do. The Transgender Persons (Protection of Rights) Act, 2019 was an attempt by the Legislative to make laws which protect the rights of the Transgenders. However, this act barely scratches the surface and does not deal with a whole lot of issues. This Act has also been criticised by the community. No laws exist or no bills are in consideration which deal with family law rights of the community. The Family Laws that deal with marriage, inheritance, adoption, divorce and guardianship follow the hugely binary law that is prevalent in India and does not accommodate the needs and rights of the LGBTQ+ community. An Amendment to the existing family laws would turn out to be a tedious task as it would basically mean the complete overhaul of the existing laws and amending them all significantly to include the LGBTQ+ community. Laws that would need amendments range from the Special Marriage Act, the Hindu Marriage Act, the Indian Succession Act, the Hindu Maintenance and Adoption Act, and many more such Acts and Statutes which deal with family law. The Surrogacy Bill needs to be amended as well as it effectively excludes the LGBTQ+ community.
Thus, keeping in mind all of this, there is therefore a desperate need for a progressive Uniform Civil Code which would take into consideration the LGBTQ+ community as well and laws would be made and worded in a way which would allow the community to enforce their already existing rights through statutory provisions. From the perspective of the LGBTQ+ community, a progressive UCC would help in the inclusion of the marginalised and would help them to integrate into the society without having to fight the very law that claims to protect them and their rights equally. Because, after all, a Uniform Civil Code is which makes all the civil laws applicable uniformly to all the citizens of the country without making any distinction among the citizens.
Authored by
Bhakti Parekh
[1] National Legal Services Authority of India v. Union of India, (2014) 5 SCC 438.
[2] Ibid, para 61.
[3] Ibid, paras 73, 74.
[4] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
[5] Ibid, para 246.
[6] Ibid, para 350.
[7] Ibid, para 230, 231.
[8] Arunkumar and Anr v. Inspector General of Registration and Others, 2019 SCC OnLine Mad 8779.
[9] Ibid, para 1.