With Gay Pride month behind us, NAVNEET SINGH and RAVI SINGH CHHIKARA suggest four immediate policy measures that must be undertaken by the Indian State to further strengthen the right to equality and dignity guaranteed to them by the Indian Constitution and recognized by the Supreme Court.
LAST month, India along with the whole world celebrated Gay Pride Month, which is dedicated to celebrating the LGBTQ+ community, its members’ struggle against discrimination, and their right to live a dignified life.
Every year, in the month of June, the LGBTQ+ community promotes the self-affirmation, dignity and equality of its members and seeks love and visibility from the public. The ethos of the month is: a person should feel proud of who that person is no matter whom that person loves.
Also read: What do Queer People Need from the Law?
History of gay pride
It all started from the 1969 Stonewall Riots in New York City, U.S. The New York Police used to conduct raids at queer bars and harass members of the queer community. However, on June 28, 1969, in response to a raid at the Stonewall Inn where the police became violent, members of the queer community fought back and organized sustained protests against the police’s prolonged discrimination and cruelty.
In 1970, the first anniversary of the riots saw pride marches being organized in New York, Los Angeles and Chicago. Since then, the month of June has come to mark gay pride.
India saw its first pride march in Kolkata in 1999. Since then, no doubt, LGBTQ+ rights have come a long way in India, yet a lot remains to be achieved. The queer community and its allies have been fighting hard to secure the rights to marriage, adoption, maintenance, and health insurance, and so on, in different parts of the world. The struggle for these rights has also been taken up before courts, and it is hoped that they will be realized soon.
As we look back at Pride Month, here is a list of steps that the State and the public should take to advance the cause of the LGBTQ+ community, and make them feel prouder next June.
Grant of legal pardon and public apology
First, offer an ex-post-facto pardon to all the people convicted for homosexual acts that are no longer considered criminal offences in India. It would be similar to the “Turing Law” of the U.K. passed in 2017, which pardoned some 50,000 gay men automatically who had died. The living ones were then offered to apply for pardons.
Similarly, in India, the State should clear all the criminal records of the convicted members of the community. This would enable them to apply for jobs, studies, and, most importantly, homes, without any harassment by authorities and landlords. After all, how unfair is it to make someone live with a tag of having committed a crime which was nothing but an exercise of one’s fundamental right?
Besides this, an apology from the State for past convictions and harassment would send out a positive signal, and help minimize hate speech and discrimination against the LGBTQ+ community. After all, in the Supreme Court’s own words, an apology is owed to members of this community.
Several world leaders have delivered similar apologies in their respective legislative assemblies to their fellow LGBTQ+ citizens such as Canadian Prime Minister Justin Trudeau, Victorian Premier Daniel Andrews, and First Minister of Scotland Nicola Sturgeon for decades of state-sponsored, systematic oppression and rejection.
Also read: I too belong to a majority that is yet to comprehend homosexuality, says Justice N Anand Venkatesh; overcomes his prejudices to rule in favour of LGBTQIA+ community
Usage of correct pronouns
Second, the public should start using the correct pronouns for the members of such communities. Proper pronoun usage for someone is one of the most basic ways to show respect for their gender identity. When someone is referred to with the wrong pronoun, it can make them feel disrespected, invalidated, dismissed, alienated, or dysphoric.
Mostly, the pronouns we use are ‘he’ and ‘she’. But for queer, gender non-conforming, non-binary, and transgender people, these pronouns may not fit and can create anxiety, distress, and discomfort. Research led by The University of Texas in 2018 showed that if transgender youths are given a chance to choose their names and pronouns, they are less likely to go into depression and attempt suicide.
Thus, it is important to set a norm of initiating conversations by declaring or asking for the pronouns the person wishes to be addressed with. This would avoid the wrong usage of pronouns with the members of the community, which would make them feel respected.
Also read: Why Same-Sex Marriages Must be Judged at the Constitutional Altar
Allow LGBTQ+ couples to adopt children
Third, as same-sex marriages are not legal in India, such couples are not allowed to adopt a child together. As per international children’s charity SOS Children’s Village, India is home to more than two and a half crore orphaned children. This number is increasing faster than it used to earlier due to the pandemic.
However, the child adoption law in India don’t permit a homosexual couple to adopt a child. It is painful to realise that as per the existing policy, the State would rather that an abandoned child live without a family at a government shelter home than be raised by a queer or a homosexual couple.
Also read: A Spectrum of Pride: Recognising Same-Sex Marriage in India
Let LGBTQ+ persons serve in the armed forces
Fourth, the State should repeal the provisions of the Army Act, 1950 that make homosexuality a crime in the Armed Forces rather than waiting for a challenge in court. Due to this law, openly homosexual people cannot join the Armed Forces and serve the country.
This is unfair and unjustified, for patriotism doesn’t relate to or come from someone’s sexual orientation, but from someone’s willingness to sacrifice for the country. Most North and South American and European countries, along with South Africa, Israel, Australia, New Zealand, Taiwan, Thailand, Japan and Philippines allow the LGBTQ+ community members to serve in their military.
By repealing such a law, we will not just make the community proud, but we will make our country prouder.
Also read: #Section377: The long road to LGBTQI freedom and the history of the legal challenge
All these rights discussed above do not require separate interference by courts. The community derives the basis for these rights automatically from the Constitution of India, as articulated in the Supreme Court’s landmark judgments in the cases of National Legal Services Authority vs. Union of India & Ors. (AIR 2014 SC 1863), Navtej Singh Johar & Ors. vs. Union of India (AIR 2018 SC 4321) and Justice K.S. Puttaswamy (Retd.) & Anr. vs. Union Of India & Ors., (2017) 10 SCC 1.
It is high time that the legislative and executive branches grant the community with the full breadth of the rights envisioned by the judiciary in these judgments. The community is waiting for the society and the State to accept it and treat it with equality and dignity.
(Ravi Singh Chhikara and Navneet Singh are both final year law students at Faculty of Law, University of Delhi. The views expressed are personal.)