The judgment of the five-judge Supreme Court bench striking down IPC Section 377 in so far as it applies to same-sex relationships lays a firm ground for further claims for equal citizenship rights, including the right to civil union, marriage, adoption and similar rights that flow from it, according to legal experts associated with the protracted legal journey.
Speaking to The Indian Express, Justice A P Shah said, “This is a very good judgment. Decriminalisation is only a gateway and this is the first step. We have to cross the threshold, bring in anti-discrimination laws, re-imagine the institution of marriage. Unless we bring in further reforms, discrimination against the LGBTQ community won’t end.”
As the Chief Justice of Delhi High Court, Justice Shah had delivered the landmark 2009 Naz Foundation vs Govt of NCT of Delhi judgment decriminalising homosexuality, before it was set aside by a two-judge bench of the Supreme Court in 2013.
Shah said that the apex court judgement takes a new approach to Article 15 which prohibits discriminating against any citizen on grounds of sex to include sexual orientation. “Based on the judgment, the legislature should bring in a non-discrimination law that not only talks of sexual minorities, as in the Yogyakarta principles, but also addresses non-discrimination against minorities or based on caste.”
The judgment refers to the 2017 annual report of the International Lesbian, Gay, Bisexual, Trans and Intersex Association on how 124 countries have stopped penalising homosexuality, 24 countries allow same-sex couples to marry and 28 countries recognise partnerships between same-sex couples.
The opinions of almost all the judges made several references to the issue of civil rights beyond criminalisation. The order of CJI Dipak Misra, to which Justice M Khanwilkar concurs, states, “There can be no doubt that an individual also has a right to a union under Article 21 of the Constitution. When we say union, we do not mean the union of marriage, though marriage is a union. As a concept, union also means companionship in every sense of the word.”
Justice Indu Malhotra’s order points out how several countries have legislation protecting LGBTQ persons from discrimination, allowing them to adopt children, before ruling that the “choice of whom to partner ..(is) intrinsic to the constitutional protection of sexual orientation” and that “members of the LGBT community are entitled to the benefit of equal citizenship”. Justice Nariman directs the Union government to “take all measures to ensure to finally eliminate the stigma associated with such persons”.
The most extensive references are made by Justice Chandrachud, who states that “decriminalisation is a first step. The constitutional principles on which it is based have application to a broader range of entitlements.”
His judgment makes several references to all rights to same sex couple in other countries and cites Justice Kennedy on the Obergefell case where the US Supreme Court recognised same-sex couples’ right to marry: “It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfilment for themselves.” Talking of setting the “course for the future”, Justice Chandrachud states that LGBTQ members “have a constitutional right to equal citizenship in all its manifestations”.
Arvind Narrain, founding member of the Alternative Law Forum in Bengaluru who works on LGBTQ rights advocacy, pointed out that that countries such as the US and Canada took the first step with decriminalisation and much later recognised the right to marriage. “The Supreme Court judgment lays a very strong ground to claims for equality in all aspects,” he said.
Advocate Amritananda Chakravorty from the Lawyer’s Collective, that represented one of the intervenors in the Supreme Court, said that this judgment was specific to a particular criminal law and now that the law is done away with, all rights become available. “Anybody whose right is infringed now has a claim and can go to court. The sky is the limit, be it discrimination in employment, healthcare, education or denial of civil rights. In fact, Justice Chandrachud spoke a lot about partnerships. If a same-sex couple wants to marry, they can go to court now.”