In recent times, the Indian legal landscape has undergone a significant transformation concerning same-sex marriages. A ground-breaking judgment recently delivered by the Honorable Supreme Court of India has sparked crucial debates surrounding the definition of ‘Indian’ and the rights of queer individuals to lead lives in harmony with societal norms.
Who defines what it means to be Indian?
Is it the cisgendered heterosexual man upholding traditional family values, or is it the queer person seeking the right to respect their partner and find security within societal norms, anchored by values such as trust, support, and marriage? Can homosexual couples marry, have children, and establish homes for themselves? As we ponder these questions, let’s delve into the recent Supreme Court judgment on same-sex marriages, exploring the current landscape and the safety of the community – a topic that feels like navigating a Pandora’s box.
Contrary to expectations, the judgment did not grant the community the explicit right to marry. The Apex Court maintained that the issue of marriage falls within the legislative domain, beyond the judiciary’s scope. It clarified that marriage, though not explicitly recognized as a fundamental right by the Constitution, obligates the state to recognize and provide benefits to queer couples under the law.
While comprehensively dissecting the judgment may seem daunting, what the community did not attain is the explicit right to marry, as deemed by the Apex Court as a legislative matter beyond the judiciary’s purview. Nonetheless, the court did issue some directions for enforcing rights for the community under Article 32 in Part III, including:
- Preventing discrimination against the queer community based on gender identity or sexual orientation.
- Eliminating discrimination in access to goods and services.
- Raising public awareness about queer identity.
- Establishing hotlines for harassment and violence, safe houses, and ceasing treatments to change gender identity.
- Recognizing self-identified gender without forced medical procedures.
- Integrating modules covering the mental health of queer individuals in the Mental Healthcare Act.
- Instructing the police to avoid harassing queer couples, refrain from forcing returns to natal families, and offer protection when needed.
- Conducting a preliminary investigation before registering an FIR against a queer couple.
Article 15(1) inclusively covers sexual orientation, and any discrimination against queer individuals is considered violative of the same. Additionally, the transgender act provides some protection for transgender individuals from the community, depending on its interpretation. A significant outcome of the judgment is the permission for:
Adoption Regulations and CARA Circular:
- Unmarried couples, including queer couples, to jointly adopt a child.
- Modification of Regulation 5(3) of the Adoption Regulations to exclude the term “marital,” ensuring that “couple” encompasses both married and unmarried couples, including queer couples.
- Application of the principle in Regulation 5(2)(a), requiring the consent of partners in a marriage for joint adoption, to unmarried couples seeking to adopt jointly.
- The state having the authority to impose conditions while framing regulations, ensuring the best interest and welfare of the child.
- Deeming the CARA Circular to disproportionately impact the queer community and be violative of Article 15.
Marriage Rights for Transgender Persons:
- Transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws that regulate marriage..
Marriage Rights for Intersex Persons:
- Intersex persons identifying as either male or female also have the right to marry under existing laws, including personal laws regulating marriage.
Empowerment of LGBTQ Community:
- The state is obligated to facilitate the LGBTQ community in exercising their constitutional rights.
- Queer individuals have the right to freedom from coercion, both from their natal families and state agencies, including the police and other individuals.
As we reflect on this legal milestone, a broader question arises: are we, as a society and within our workspaces, truly inclusive of queerness? The judgment prompts a critical examination of Diversity, Equity, and Inclusion (DEI) practices. At Kelp, we offer comprehensive support to kickstart DEI initiatives, ensuring a smooth roadmap for creating an inclusive environment. Check out our detailed checklist on fostering inclusion for queer individuals, regardless of the judgment’s implications.
About Kelp
Kelp was incorporated in 2013 to provide the best HR solutions to organizations, and to improve workplace culture across the board. Over the last 11 years, we have serviced more than 800 clients in India and a few overseas, across various industries in the areas of PoSH (prevention of sexual harassment at workplace), D, E & I (Diversity, Equity & Inclusion) and EAP. But the common objective of all of these services is to build safer, happier, inclusive and productive workplaces.
For any of our other services related to Prevention of Sexual Harassment (PoSH) or Employee Assistance programs (EAP) do get in touch with us at info@kelphr.com, call +91-95001-29652 and we’d be able to help you with customized offerings suited to your organization.
(The Author is a lawyer and subject matter expert in the Centre of Excellence team at KelpHR)
