The nation has made tremendous strides towards public acceptance and legislative reform in recent years. To really accept the LGBTQIA+ community and secure their rights, respect, and wellbeing, however, much work remains.

Like many other nations, India has struggled with social prejudices and stereotypes towards the LGBTQIA+ population that are deeply rooted. The path to equality entails confronting these stereotypes and removing the obstacles that prevent LGBTQIA+ people from fully participating in all facets of life. By fostering an inclusive atmosphere, we provide people the chance to right past wrongs, advance communication, and increase understanding among many facets of society. As a result, the social fabric becomes more equitable and peaceful.

It is critical to acknowledge and uphold the fundamental human rights and dignity of every person, regardless of their sexual orientation, gender identity, or gender expression, in a varied and diversified community like India. By guaranteeing that no one is marginalised or excluded, an inclusive environment upholds the idea that everyone deserves respect, justice, and protection against discrimination.

For upholding human dignity, addressing social injustices, promoting mental and emotional well-being, facilitating personal and professional growth, catalysing positive social change, and advocating for legal reforms, it is crucial to create an equal, inclusive, enabling, and just environment for the LGBTQIA+ community in India.

India may make tremendous progress towards establishing a society that celebrates individuality, upholds human rights, and promotes inclusivity through embracing variety, dispelling prejudices, and providing equal rights. It will take the combined efforts of individuals, communities, institutions, and legislators to create an LGBTQIA+-friendly environment, but the final result will be a stronger, more vibrant, and progressive country that upholds the principles of equality and justice for all.

This piece attempts to go deeper into the court rulings, decrees, and directives that have made it possible for the LGBTQ+ community to flourish in an inclusive, just, and equitable environment.

Let’s take a walk through these pivotal moments for the community, in the honour of the pride month.

Judgments furthering equality

A theory of law, legal positivism[1], posits that different judges, would give different outcomes to the same legal problem in front of them.

The principles, moral convictions, and ethical frameworks that people hold dear are referred to as values and beliefs. Judges’ decision-making is influenced by their personal values and opinions, just like that of any other person. These individual viewpoints may include how they perceive justice, fairness, individual liberties, and social norms. Judges may interpret legal principles in light of their views and beliefs when applying the law to particular instances. Judges may emphasise various legal reasons, give different weights to opposing interests, and eventually arrive at different conclusions as a result of these disparities in attitudes and views.

Different Judges then, may arrive at different sets of findings from the same factual situations based on their personal values and opinions. Putting aside one’s personal beliefs and giving a judgement is a challenge.

The LGBTQIA+ community saw a different kind of glimmer of hope in the case of Mrs. S. Sushma & Ors. v. The Director-General of Police & Ors[2] where Justice Ventakesh, recognising his own lack of comprehension of the realities of the community, sought psychoeducation and counselling to increase his understanding of same-sex partnerships.

Such an openness in attitude is both precious and rare. It is not often that those in positions of power and judicial authority acknowledge their own shortcomings.

Justice Venkatesh therafter issued a landmark decision in June 2021, giving specific instructions to the police, judiciary, legal aid services, and central ministries to sensitise their employees and personnel in their interactions with LGBTQIA+ people after undergoing counselling and consulting with community members, NGOs, and lawyers.

These are the kind of judges India needs, the ones who are open to learning and educating oneself, while keeping an open mind, not the kind of judges who will compromise on the integrity of the constitution in order to protect their own set of discriminatory values and beliefs.

Other Jurisprudence

1. NALSA v. Union of India[3]

For the nation of India, the 2014 NALSA Judgement represented a turning point. The Supreme Court of India issued a significant ruling in this matter in April 2014. The right of transgender people to self-identify as male, female, or third gender was upheld by the court, who also acknowledged their legal rights.

According to the ruling, transgender individuals should be seen as a socially and economically underprivileged group that is entitled to numerous affirmative government policies from both the state and the federal level.

The ruling confirmed that transgender people are entitled to the fundamental freedoms and rights protected by the Indian Constitution, such as the right to life, equality, and freedom from discrimination. It emphasised the need to treat the transgender population with respect and decency.

The government was ordered by the court to take action to formally recognise transgender people’s gender identities. It acknowledged the value of granting gender identification certificates to make it easier for people to obtain a range of rights, privileges, and benefits.

The NALSA ruling classified transgender people as a socially and economically disadvantaged group, making them eligible for affirmative action initiatives and accommodations in the workplace and in education. It demanded that social welfare programmes and other actions be taken to support the transgender community.

The judgement emphasised the necessity for facilities and services tailored specifically to the needs of transgender people. It recognised that transgender people have the legal right to hormone therapy and sex reassignment surgery (SRS) without facing any prejudice.

In addition to stressing the significance of raising knowledge about transgender rights among the general public, elected officials, and law enforcement agencies, the judgement also ordered the government to guarantee transgender people’s access to education and job training. To combat the discrimination and stigma experienced by transgender people, it called for sensitization campaigns. It demanded the abolition of prejudice in educational settings and the development of welcoming environments. The court’s ruling emphasised the necessity of expanding employment possibilities and taking action to combat workplace discrimination.

The NALSA decision marked a significant advancement in the recognition and defence of transgender people’s rights in India. It serves as the basis for later legal, political, and social changes aimed at advancing equality and inclusivity for the transgender population.

2.  Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors[4]

The 2017 ruling by the Supreme Court of India in the K.S. Puttaswamy v. Union of India case, generally known as the Aadhaar case, was a significant decision.

The lawsuit largely focused on the right to privacy in relation to the Aadhaar biometric identification system, but it also has implications for other groups, such as the LGBTQ+ community.

The Indian Constitution protects the right to privacy as a basic right, according to this Supreme Court’s ruling.

According to the court, a fundamental component of the right to life and personal freedoms protected by Article 21 of the Constitution is the right to privacy. This decision has a favourable effect on the rights of the LGBTQ+ community by having substantial implications for personal autonomy, freedom, and dignity.

The idea of equal treatment and non-discrimination is reaffirmed by the right to privacy judgement. It acknowledges that people have the freedom to make private decisions free from unwarranted government or social involvement. This idea can be used to shield LGBTQ+ people from stigma, prejudice, and discrimination because of their sexual orientation or gender identity.

The ruling emphasises the value of shielding people from unwarranted state interference in their personal affairs. This protection can cover private decisions, personal connections, and other areas that are important to LGBTQ+ people. It can assist in stopping governmental authorities from meddling in their personal affairs, such as outing people against their will or conducting intrusive monitoring based on sexual orientation or gender identity.

The acceptance of the right to privacy promotes a person’s ability to publicly express their sexual orientation or gender identity. It enables LGBTQ+ people to express themselves without worrying about society or government pressure. This could help create a more accepting culture that respects and upholds the right of LGBTQ+ people to self-determination.

The importance of close friendships and family ties is acknowledged by the right to privacy. It can safeguard LGBTQ+ people’s ability to establish relationships, pick partners, and exercise their rights to be married, adopt, or start families without unjustifiable restrictions. This offers a foundation in law for the acceptance and defence of LGBTQ+ families.

Although the K.S. Puttaswamy ruling dramatically increased the rights of the LGBTQ+ community in India, there are still difficulties and battles to be won before there is complete equality and acceptance. The ruling offers a legal basis, but in order to provide complete protection and rights for LGBTQ+ people, societal attitudes, cultural norms, and more legal reforms are required.

3.  Shakti Vahini v. UOI[5]–

In 2018, the Apex Court acknowledged the freedom to select a life mate as a basic right in its decision.

When two adults mutually decide to become partners in life, the SC noted that this is a manifestation of their choice recognised by Articles 19 and 21 of the Constitution.

Although the LGBTQ+ community was not specifically mentioned in this ruling, it did describe the ability to choose a partner as a fundamental freedom and used gender neutral terms which can be applied to the LGBTQ+ community

4. Navtej Singh Johar v. UOI[6]

The 2018 ruling expressly reversed the Supreme Court’s prior ruling in the 2013 Suresh Kumar Koushal v. Naz Foundation case, which had affirmed Section 377’s constitutionality. In doing so, the Supreme Court upheld legal history actually made by the Delhi High Court in 2009 when a two judge bench that unequivocally held that treating consensual sex between adults as a crime is violative of fundamental rights protected by India’s Constitution. In 2013, ironically a two judge Supreme Court bench re-instated Section377 of the IPC. This, the Koushal decision had harmed the LGBTQ+ community greatly and had continued prejudice, the court admitted.

Overturning the 2013 Suresh Kumar Koushal v. Naz Foundation case, the court cited the idea of constitutional morality and said it is the responsibility of the judiciary to uphold individual rights and avoid the tyranny of the majority.

It was argued that in order to uphold constitutional morality, the LGBTQ+ community’s rights must be acknowledged and safeguarded. The verdict emphasised the value of social justice and the necessity of defending the rights of disadvantaged and marginalised people.

The decriminalisation of homosexuality was acknowledged as a step towards guaranteeing social justice for the LGBTQ+ population, which has historically been the target of discrimination, social stigma, and exclusion. In discussing issues of sexual orientation, the court emphasised the value of individuality and personal autonomy. It was decided that the freedom to select a partner who is also of the same sex is an expression of personal autonomy and is protected by the right to privacy.

The court made clear that laws that discriminate against people based on their sexual orientation are not supported by a legitimate classification and cannot, therefore, withstand constitutional scrutiny by highlighting the lack of intelligible differentia in Section 377.

5.  Deepika Singh v. CAT[7]

In this case, in 2022, the Indian Judiciary in its judgement, highlighted the different forms of families can evolve. The traditional definition of a family, which consists of a heterosexual couple and their kids was changed in this judgement to include all sorts of families.

An excerpt from the judgement reads-

“Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the ‘mother’ and the ‘father’) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts.

“Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation

“The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”

The Naz Foundation decision, in which the Delhi High Court’s Division Bench declared Section 377 of the Indian Penal Code to be unconstitutional, first raised the issue of inclusivity by rejecting the conventional socio-legal definition of “family” as defined by a married mother and father. This decision furthers that idea by rejecting the traditional definition of a family.

6.  Arunkumar and Another Versus Inspector General of Registration[8]

It was decided in the case of Arunkumar v. Inspector General of Registration in 2019 that transgender people have the right to marry under Article 21 of the Indian Constitution and that the term “bride” under the Hindu Marriage Act includes transgender people who identify as women. The Court upheld Ms. Sreeja’s self-identification as a woman and acknowledged her right to do so, as well as the rights of other intersexes and transgender people who identify as women, to be included in the term of “bride.” It was observed that the State’s refusal to register her marriage constituted a breach of her fundamental rights.

7.  Nangai Versus Superintendent of Police, Karur District, Karur and Others[9]

In 2014, the Court acknowledged that Indian law does not take into account the gender fluidity of transsexuals. The Court acknowledged that forcing someone to undergo a gender medical examination was against Article 21.

The judgement upheld the individual’s right to self-identify as a particular gender. In addition to noting the continuous emphasis on binary gender identities in Indian and international publications, it rejected medical evidence of gender. Consequently, sex is decided at birth based on physical traits and by society as a whole under the Registration of Births and Deaths Act of 1969 and other laws. It has never been necessary to submit to a medical examination to demonstrate a person is female, thus making the petitioner do so in this instance is unfair.

Additionally, it was decided that failing to treat Nangai as a woman would be a breach of her constitutional rights  (Articles 14, 15, 16, 19(1)(a), 21) to equality, non-discrimination, freedom of speech and expression, life, and personal liberty, which were upheld in NALSA v. Union of India. The Court ultimately decided that Nangai was a woman and qualified for the position of a lady police constable.

Nangai also had the ability to self-identify as a third gender, among other gender identities. The Court overturned the decision to terminate Nangai’s employment and instructed the Superintendent to rehire her as a woman police constable after noting that she had not mislead the Board about her gender and recognised the stress that the forced medical exams had caused her.

8.  Queerythm and Anr. v. National Medical Commission and Ors. [10]

NGOs argued in 2021 that a section of the MBBS textbooks that promoted “Queer phobia” should be removed. They said that these textbooks stigmatise the sexual and gender identities of the LGBTQ (lesbian, gay, bisexual, and transgender) population as a crime, mental condition, or depravity.

According to the petitioners, the use of this kind of content violates the rights of LGBT people under Articles 14, 17, 19, and 21 of the Indian Constitution.

The National Medical Commission and the Undergraduate Medical Education Board were directed to act swiftly in order to address the problem of MBBS textbooks using “outdated, inhuman and discriminatory text and unscientific data” referring to the Queer community by the Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly of the Kerala High Court.

9.  Matman Gangabhavani v State of Andhra Pradesh and Ors[11]

This 2019 case pertains to reservations for transgenders. The High court of Andhra Pradesh recalled Supreme Court Directive 3 in NALSA (page 128) which instructed the federal and state governments to treat transgender people as members of socially and educationally underprivileged classes and to grant them “all kinds of reservations” in public employment and school admissions.

The court came to the conclusion that the State was compelled by this directive to establish a distinct category of reserved classes—the transgender category. This reservation category was supposed to be an addition to the others. The court referred to this reservation as “vertical.”

The court characterised the law by saying that it was compelled by the Supreme Court orders and that reservation in public positions was authorised by the constitution. But it has to be vertical in form. The NALSA guidelines were incorrectly implemented in terms of horizontal reservation.

However, failing to give vertical reservations constituted a disobedience of the Supreme Court’s order, for which contempt actions may be appropriate.

10.  Queerala An organization for Malayali LGBTIQ Community v. State of Kerala[12]

In 2020, J. V. Kunhikrishnan ordered Kerala’s government to take stern action against the state’s LGBTQA+ community’s forced conversion treatment. The Court further ordered the government to establish an expert group and develop a directive based on its findings in this regard.

11.  Sushma v. Commissioner of Police, Chennai[13]

This 2021 judgement is an extremely crucial one, as it laid down guidelines for the Police and prison authorities, educational institutes and for Physical and mental health professionals. The efforts Justice Venkatesh has gone through, in order to be able to deliver a fair and just judgment is historic.

The rules that have been established for the field of education include:

1. Educating parents on gender nonconformity and the LGBTQIA+ community will help to guarantee that families are accepting.
2. Ensuring that the restrooms are gender neutral for the transgender pupils.
3. People who identify as transgender should have the ability to modify their name and gender on their academic records.
4. In addition to the male and female gender columns in the application forms for admissions, competitive exams, etc., the term “transgender” should also be included.
5. Appointing counsellors who are more inclusive of all genders, whether in terms of the staff or the students, to ensure that complaints are handled in a more effective way

The guidelines for police and prison authorities recommend that:

1. There should be frequent programmes that concentrate on the procedures that should be taken to protect and also prevent offences against the members of this group.
2. Along with raising knowledge about the crimes and punishments listed under The Transgender Persons (Protection of Rights) Act, there should also be sufficient sensitization on their legal rights.
3. There should be separate prisons to reduce the likelihood of cis-men sexually assaulting transgender and gender non-conforming inmates. Programmes should be run by various NGOs with community support to highlight the issues that are faced by law enforcement agencies. Proper training should also be provided to ensure effective assistance with these issues.

The guidelines for Physical and mental health professionals include-

1. Along with programming that helped people grasp the concepts of gender, sexuality, and sexual orientation and encouraged acceptance of diversity, there should be mental health camps.
2. It should be strictly forbidden to make any attempts to medically treat or transform the sexual orientation of members of the LGBTQIA+ community into that of a heterosexual.
3. Professionals who participate in this conversion therapy should be sanctioned by taking strong action against them or perhaps having their licence to practise revoked.

Other policy directions that have helped create a just and equitable environment for the community are-

1. In 2020, the Karnataka government issued a directive prohibiting the recruitment of transgender people into the police force. But in July of that same year, the Karnataka government decided to make provisions for the reservations of transgender while hiring state police.[14]

2. The Karnataka government formally agreed in July 2021 and was the first to implement a 1% reservation for the transgender population in positions with the government. Soon after, a new petition was filed asking for the consideration of transgender accommodations in state-owned businesses and statutory organisations.[15]

3. Earlier this year, a petition was submitted to the Delhi High Court asking it to order the State government to build exclusive restrooms for transgender people since not doing so would violate their right to privacy. Additionally, when transgender people use bathrooms intended for males or women, it makes them uncomfortable and leaves them up to harassment.

The Delhi government had stated that the letter “T” will be put to bathrooms built for the disabled so that transgender people may also use them. The Court informed the State, but there had been no update on how this was being put into practise. The persistent stigma associated with transgender people makes access to basic health care facilities difficult for them[16]

4. Rajesh Bindal, the acting chief justice of the Calcutta High Court, appointed transgender person Ankani Biswas to the West Bengal State Legal Services Authority as an attorney. First transgender person to hold the job is Biswas.[17]

5. Rejecting claims that Kirpal’s “ardent involvement” in gay rights issues could lead to potential “bias and prejudice,” the apex court Collegium, led by Chief Justice of India D Y Chandrachud and also including Justices S K Kaul and K M Joseph, reiterated its November 11, 2021 recommendation for Kirpal to be appointed as a judge of the Delhi High Court.
6. According to the Collegium, Kirpal’s application to become a judge of the high court has been pending for more than five years and has to be reviewed quickly. If Saurabh Kirpal is appointed as a judge, he will be the country’s first openly gay judge.[18]

There have been multiple remarks made by CJI DY Chandrachud in the petition to legalize same-sex marriages, which the Supreme Court is currently hearing –

“There is no absolute concept of a man or an absolute concept of a woman at all. It’s not the question of what your genitals are. It’s far more complex. So even when Special Marriage Act says man and woman, the very notion of a man and a woman is not an absolute based on genitals”

These judgements, remarks and orders not only show hope for a better future of India and the LGBTQ+ community but also reflect the change in the mindset of sections of the Indian Judiciary at least since Suresh Kumar Koushal v. Naz Foundation (2013).

With the changing atmosphere, one can be certain that there is hope for an India which recognized and provides all the right available to heterosexual people to the queer community.

[1] Hart, H. L. A., 1961 [2012], The Concept of Law, Oxford: Clarendon Press. Third edition, 2012

[2] S. Sushma, D/o. Mr. V. Senthil Kumar and Another Versus Commissioner of Police, Chennai and Others [2021] 5 MLJ 9

[3] NATIONAL LEGAL SERVICES AUTHORITY (NALSA) VS. UNION OF INDIA, AIR 2014 SC 1863

[4] Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union of India & Ors, (2017) 10 SCC 1

[5] SHAKTI VAHINI v. UNION OF INDIA [(2018) 7 SCC 192]

[6] Navtej Singh Johar and Ors. vs. Union of India, AIR 2018 SC 4321

[7] Deepika Singh v. Central Administrative Tribunal, 2022 SCC OnLine SC 1088

[8] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[9] Nangai Versus Superintendent of Police, Karur District, Karur and Others [2014] 4 MLJ 12

[10] Queerythm and Anr. v. National Medical Commission and Ors. W.P.(C) No.18210 of 2021

[11] Matman Gangabhavani v State of Andhra Pradesh and Ors WP No 16770 of 2019 (AP High Court)

[12] Queerala An organization for Malayali LGBTIQ Comunnity v. State of Kerala, WP(C) No. 21202 of 2020

[13] S. Sushma, D/o. Mr. V. Senthil Kumar and Another Versus Commissioner of Police, Chennai and Others [2021] 5 MLJ 9

[14] https://www.barandbench.com/news/litigation/reservation-for-transgender-persons-state-police-constable-recruitment-state-government-karnataka-hc

[15] https://www.barandbench.com/news/litigation/karnataka-becomes-first-in-the-country-to-provide-1-reservation-for-transgender-persons-in-public-employment

[16] https://www.barandbench.com/news/litigation/delhi-high-court-govt-response-progress-regarding-separate-toilets-transgender-persons

[17] https://www.barandbench.com/news/litigation/transgender-lawyer-ankani-biswas-panel-lawyer-west-bengal-state-legal-services-authority

[18] https://economictimes.indiatimes.com/news/india/saurabh-kirpal-may-become-first-gay-judge-of-constitutional-court-if-centre-accepts-collegiums-recommendation/articleshow/97175651.cms?from=mdr

Related:

Manoeuvring Law and Legality for Same-Sex Marriage

Kerala’s Islamic Groups Face Accusations of Discrimination Against LGBTQIA+ Community

India’s LGBTQIA+ struggle: beyond legal victories, battle for true equality remains

The post Courts take forward steps for India’s LGBTQIA+ community appeared first on SabrangIndia.

The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India [14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15] Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1] https://www.oed.com/

[2] AIR 2018 SC 4321

[3] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4] https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5] https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6] https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7] Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8] Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9] https://www.equaldex.com/issue/adoption

[10] Hodges – 135 S. Ct. 2584 (2015)

[11] Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13] Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14] Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15] Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16] Payal Sharinee v. Vinayak Pathak 2010 (1)BomCR 434

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