Introduction to Constitutional Morality and LGBTQ+ rights in India

Constitutional Morality and LGBTQ+ Rights
Morality is subjective interpretation of a person of what is right or wrong. It has several notions attached to it. It is morally required to uphold the principles of the constitution with the highest respect and integrity. George Grote provided some incidents of Constitutional Morality which entails specific duties for both people and the authorities.[1]

• Respecting the Constitution.
• The right to free speech and expression.
• The authority should not work in an arbitrary manner.

Constitutional Morality promises a commitment to inclusive and democratic political process which serves both individual and social interests. Ambedkar viewed constitutional morality as an essential for maintaining rule of law. It essentially upholds the principles of liberty, equality and fraternity which ensures that laws protect individual rights and promote social justice. Social prejudices regarding LGBTQ+ rights are superseded by the doctrine of Constitutional Morality.

It serves as a guiding framework for the courts to uphold the constitutional principles of equality rather than the societal norms. Hence, constitutional morality is a powerful tool in advancing rights for LGBTQ+ rights. Let's further discuss the social evolution of this cosmopolitan community.

The History of LGBTQ+ Rights in India: Its Legal and Social Evolution

The rights of the LGBTQ+ community have been turbulent in their journey. Same-sex relationships were essentially criminalized under Section 377 of the Indian Penal Code[1].

In the case of National Legal Services Authority v. Union of India[2], the Hon'ble Apex Court referred transgender people as the "third gender". This ruling essentially gave a sense of separate identity apart from referring them "manly women" or "disabled individuals". This ruling also acknowledged that they are entitled to the same protections under the Indian Constitution on their fundamental rights.[3]

Without delving much into case laws, the ancient Hindu scriptures acknowledge the existence of the "third-gender". Some historical examples of same-sex unions are the portrayal of homosexual acts in the Kama Sutra, the harems of young boys owned by Muslim Nawabs & Hindu Aristocrats, and male homosexuality in the Middle Ages of Muslim history like Malik Kafur.[4]

Coming to the present times, despite the fact that we could consider ourselves to be a sophisticated and enlightened age, it is distressing to see the injustices LGBTQ people face in a variety of contexts. However, everything changed after the judgement of Navtej Johar Singh[5], the Supreme Court unanimously struck down Section 377 of the Indian Penal Code and declared it unconstitutional.

Another development was in 2019 with the introduction of the Transgender Persons (Protection of Rights) Bill, 2019 which however essentially denied the transgender community to certain rights. It was indeed an institutional tyranny which was imposed on these people which dehumanises their soul and identities.

The most recent judgement is that of Supriyo @ Supriya Chakraborty v. Union of India[6], wherein the Hon'ble Supreme Court observed as follows:

1. There is no unqualified right to marriage except that recognised by statute including space left by custom.
2. An entitlement to legal recognition of the right to union – akin to marriage or civil union, or conferring legal status upon the parties to the relationship can be only through enacted law. A sequitur of this is that the court cannot enjoin or direct the creation of such regulatory framework resulting in legal status.

This judgement clarified the tussle between fundamental rights and marriage of the queer community. The Court could not recognize the right of LGBTQIA+ people to marry under the SMA, the Bench unanimously said, and there was no basic right to marriage.[7]

The striking Constitution Bench, presided over by Chief Justice D.Y Chandrachud declared that same sex partners do not have a constitutional right to adopt children under the present laws governing the practice. Even though the defence once again referred to the non-traditional American sexual and family model, the court noted the social change and highlighted the need for amendments in the legislation concerning the adoption of children of the representatives of LGBTQ+ community.

Although the court did not recognize direct adoption of a child by a same-sex partner of the biological parent, it introduced hope for future amendments and encouraged the promulgation to think about how the rights of couples of the same sex in family laws shall be enhanced.

This case was historic within the Region as it reaffirmed dignity and equality of the LGBTQ+ population while falling short of giving adoption rights to same sex couples. The court acknowledged other members of the society but declined to wait for legislative changes on adoption on its own and referred it to Parliament.

Hence in a way it affirmed the LGBTQ+ community's constitutional rights but left many legal queer areas open particularly concerning family laws; adoption, marriage, etc. The ruling insisted on future developments of consequent amendments; activists kept advocating for equal legal acceptance of the family rights for the members of the LGBTQ+ community in India.

Social and Cultural Dimensions of LGBTQ+ Rights in India

Public Perception and Societal Challenges

The societal attitude towards the LGBTQ+ community has progressed significantly with the increase in legal protections, the visibility of acceptance can be observed. Nevertheless, this community still face challenges. Discrimination, stigma and heteronormative exceptions are some of these challenges. This essentially leads to high rates of anxiety, depression and suicidality within this community.

Although, the efforts made in public awareness and education have improved their overall standard of living and public perception, societal biases still prevail such as healthcare disparities and economic inequalities. The ongoing effort to destigmatize LGBTQ+ community are need of the hour which is required for fostering a truly inclusive society and the challenges faced by the LGBTQ+ community.[1]

Impact of Legal Changes on LGBTQ+ Rights

Concerning legal reforms for the community every amendment has been a revolution towards equality and protection. Cases like Navtej Singh Johar v. Union of India[1] have brought radical change in social/ family structure and legal rights status of homosexually oriented people. These changes bring into recognition, protection, and dignity the sexual minorities, enabling them to freely practice the rights in this area without a deadly persecution. Legal changes foster social acceptability also, they work against the set ethnic imperatives and embrace change.

The measures against employment, housing, as well as, health care discrimination have been other areas of reform in the course of these reforms. But legal victory in this top issue isn't enough; the society and its institutions need to change to accept LGBTQ+ rights as well. These have been some more changes in the laws but more effort is needed to ensure that same sex couples amongst others get equal rights in other areas such as marriage and same adoption rights.

One such socially relevant judgment of the common man was the Arun Kumar v. Inspector General of Registration[2]. The Supreme Court of India ruled that a supreme court marriage between a male cissexist and a postoperative female to male transsexual was valid under the Hindu Marriage Act; this overturned status quo prejudice discriminative against transgenders.

Constitutional Morality as a Catalyst for the Future of LGBTQ+ Rights

Marriage Equality and Beyond

In India, the legal landscape which revolves around the LGBTQ+ is evolving, this creates a potential battle for marriage equality and adoption rights and anti-discrimination protections. The access to marriage can help reduce the stigma which is faced by these minority community. This can in turn result in benefits such as improved mental and physical health. Research also shows that marriage equality helps in reducing structural stigma.[1]

Although, the legal rights being given, the challenges still persist. LGBTQ+ couples often face difficulties in adoption because of societal and legal barriers. Laws often privilege heterosexual family structures. Reforms are indeed needed because they essentially allow joint family adoption by same-sex couples.[2]

Future reforms in this area should focus on eliminating the inequalities which a LGBTQ+ family might face. This essentially includes expanding the legal protection and also improving the access to reproductive technologies for these people.[3]

Role of the Judiciary and Civil Society

The civil society and judiciary play an important role in advancing LGBTQ+ rights primarily with the application of constitutional morality. In cases such as Navtej Singh Johar v. Union of India[1], the Hon'ble Supreme Court invoked constitutional morality to decriminalize homosexuality which emphasizes equality, dignity and non-discrimination.[2][3]

The role of judicial activism pertains to constitutionalism helps to expand the legal recognition of LGBTQ+ rights. The courts have always acted as the defenders of the marginalized group by affirming their right to self-identity and self- determination. However, society's ongoing activism is critical for ensuring that these legal victories translate into real societal change. [4]

While research report and legal decisions form the core of this area, it is going to need a concerted effort from both the judicial branch and civil society to change the culture of a certain society and put in place radical policies that would make the lives of the lesbians, gay, bisexual, trans, and queer individuals better.

Conclusion
Thus, constitutional morality has become a dominating locus of popular discourses in the progression of the rights for LGBTQ+ individuals in India, mainly upheld by the judiciary. Numbers like Navtej Singh Johar v. of India have also endorsed equality, dignity and non-discrimination where the constitutionally assured rights have had legal responsibility, logically to have continued impact on future legal changes. But as it has been clearly demonstrated, legal wins are insufficient in eradicating unlawful beliefs which have percolated in a society.

They stand for these rights, but civil society serves as an intermediate between these judicial advances and an increased rate of overall social approval of these rights and continuing to fight for such rights as marriage equality or adoption rights. Thus, the judiciary and civil society are gradually promoting new legal and social opportunities for minorities activists despite the existing problems. The continuous battle for respecting, protecting, and advancing constitutionalism in achieving law-and-society reforms will continue to be central to the struggle for the full realization of the rights of lesbians, gay men, bisexual, and transgender people in India.

End Notes:

• AIR 2018 SC 4321.
• LGBT rights in India: The Doctrine of Constitutional Morality and Counter-Majoritarianism in the Context of Institutional Supremacy, ConstitutionNet, http://constitutionnet.org/news/lgbt-rights-india-doctrine-constitutional-morality-and-counter-majoritarianism-context (last visited Sep 30, 2024).
• Judicial Activism In The Advancement Of LGBTQ Rights, https://legalserviceindia.com/legal/article-15874-judicial-activism-in-the-advancement-of-lgbtq-rights.html (last visited Sep 30, 2024).
• Aounkar Anand, TRANSFORMATIVE CONSTITUTIONALISM AND THE EXPANSION OF LGBT RIGHTS IN INDIA: A HUMANISTIC ANALYSIS | RostrumLegal, (Mar. 17, 2024), https://www.rostrumlegal.com/transformative-constitutionalism-and-the-expansion-of-lgbt-rights-in-india-a-humanistic-analysis/ (last visited Sep 30, 2024).

References:

• Laurie A. Drabble et al., Perceived Psychosocial Impacts of Legalized Same-Sex Marriage: A Scoping Review of Sexual Minority Adults' Experiences, 16 PLOS ONE e0249125 (2021).
• Akshat Agarwal, LGBT+ Rights Claims for Marriage Equality and the Possibilities of Transforming Indian Family Law, 21 International Journal of Constitutional Law 1116 (2023).
• Id.AIR 2018 SC 4321.
• AIR 2019 MADRAS 265.
• Aman Shaikh et al., Mental Health Challenges within the LGBTQ Community: A Societal Imperative, 13 Journal of Family Medicine and Primary Care 3529 (2024).
• Indian Penal Code, No. 45 of 1860, India Code (1860).
• (2014) 5 SCC 438.
• R. A. Aswin Krishna, D. Amirthavarshini & Jemima Christy Rebekah, LGBTQ Rights and Legislation in India: The Status Quo, 3 Indian J. Integrated Rsch. L. 1 (2023).
• Vikram Singh, History of Homosexuality in India, in Asian Homosexuality 17, 17-29 (Gerard P. D., ed., 2011).
• AIR 2018 SC 4321.
• 2023 SCC OnLine SC 1348.
• Plea for Marriage Equality, Supreme Court Observer, https://www.scobserver.in/cases/plea-for-marriage-equality/.
• Aiswarya Lakshmi, Constitutional Morality: An Overview, 2 Part 2 Indian J. Integrated Rsch. L. 1 (2022).