Yeshwant Naik

Summary and Main Thesis

This book considered the Indian Supreme Court’s jurisprudence on the legal recognition of homosexuality, same-sex unions and their right to found a family, asking specifically how the needs of LGBTI persons had been met by the Supreme Court. The study analysed the Court’s jurisprudence on homosexuality, the Court’s current position on homosexuality and the legal recognition of same-sex unions. In addition, the study also considered how much the Court’s position had evolved in the past years.

Suggestions and Concluding Remarks

The study involved an analysis of the jurisprudence of the Supreme Court (henceforth “the Court”) on the legal recognition of homosexuality, same-sex unions and their right to found a family. It examined how this need has or has not been met by the Court. For this purpose, the following research questions were formulated: How consistently has the Court acted in its judgments relating to homosexuality and to the perception of homosexuality, same-sex unions and their right to family? What is the current level of protection afforded by the Court to sexual minorities? Why is the Court’s current approach discriminatory?

Global Discrimination Against Gay Families

The predominant influence of the traditional nuclear family model on national and international laws is undeniable. But this model obviously fails to account for the differences encountered in gay families, who are unable to fulfil the “traditional” family ideal, thus marginalizing, excluding and discriminating against them. Yet it is also undeniable that the traditional nuclear family is gradually becoming outdated. As Hodson brings out in her important work “Different Families Same Rights: Lesbian, Gay, Bisexual and Transgender Families under International Human Rights Law”: “Divorce is now common, leading to a rise in single-parent households and step families. Several couples are choosing single life, leading to greater number of children born out of the wedlock. Increasingly sophisticated reproductive technologies are becoming also available which challenge the traditional assumptions about parenthood and family.” All of these gradual changes combined—rising divorce rates, a preference for a single lifestyle and the increasing use of reproductive technologies—demonstrate the general evolution of family as a flexible unit among changing social circumstances. And in the succinct words of one Canadian Supreme Court Justice: “Family means different things to different people, and the failure to adopt the traditional family form of marriage may stem from a multiplicity of reasons – all of them equally valid and all of them worthy of concern, respect, consideration and protection under the law.”

Addressing Judicial Activism and Judicial Restraint

The end of British Raj saw the oppression of masses beyond imagination at the hands of the unconstrained actions of money power, muscle power, media power and ministerial power. With the framing of the Constitution of India, the three wings of effective governance—the Legislature, the Executive and the Judiciary—came into being. This constitutional framework of the separation of powers demarcates the powers and areas of all these three organs. However, sometimes with the failure of the Legislature and the Executive, the separation of power is only on paper. “After independence the executive has always looked upon the judiciary as a hostile branch of the State since executive started to rot into a system for personal and not public gains.” Another reason that can be attributed to this change is the theory of social wants. Under such circumstances, the Judiciary could not wait for the Parliament to take action, as it took far too long to procure justice. Hence the Judiciary was compelled to provide relief.

Analyzing the Supreme Court’s Verdict on Section 377 of the Indian Penal Code

On December 11, 2013 the Court overturned a High Court verdict that struck down the 1860 law and decriminalized consensual carnal sex among adults. The Supreme Court (henceforth “the Court”) passed the responsibility to the Legislature, arguing that the law can be annulled only through appropriate legislation. In doing so, the Court observed that section 377 of the Indian Penal Code does not violate any of the constitutional provisions. The Court’s order finally stated: In its anxiety to protect the so-called rights of LGBT persons … the High Court has extensively relied upon the judgments of other jurisdictions. Though these judgments shed considerable light on various aspects of this right (concerning gay people) and are informative in relation to the plight of sexual minorities, we feel that they cannot be applied blindfolded for deciding the constitutionality of the law enacted by the Indian legislature.

Interpretative Methods and Judicial Power

Homosexuality is a crime and punishable under Section 377 of the Indian Penal Code. The Delhi High Court on July 2, 2009 held Section 377 to be unconstitutional with respect to penetrative sex, i.e., penile-anal sex and penile-oral sex, between consenting adults in private. However, the Supreme Court, through its recent judgment has criminalized homosexual acts by reinstating Section 377. In doing so, it has set aside the Delhi High Court verdict (2009), which conferred equality, liberty and dignity to the LGBTI community. On earlier occasions, the Supreme Court has struck down constitutional amendments; thus, by not striking down Section 377 the Supreme Court has exercised judicial restraint. It has denied fundamental human rights to the LGBTI Community by labelling them the “miniscule minority.”

Law Beyond the Law

As discussed in previous chapters, in its December 2013 verdict on consensual sex in private between two adults the Supreme Court of India (henceforth “the Court”) recriminalized homosexuality. Overturning the Delhi High Court’s decision on the constitutionality of Section 377 of the Indian Penal Code, the Court found that the said section does not suffer from any constitutional infirmity. Nevertheless, the Court in its verdict opined that the competent legislature shall be free to consider the desirability and propriety of amending or deleting Section 377 from the statute book. But this decision, as I have argued and continue to argue, is unconstitutional: There is a diversity of sexual preferences and homosexual sexual relations should be decriminalized and accepted based on the constitutional rights of gay men to privacy, to sexual identity, to personal freedom and to equal treatment, among others.

The Jurisprudence of Discrimination Against LGBTI Persons: Global Issues and Concerns

An account of the disturbingly high prevalence of human rights violations (i.e., discriminatory laws and practices and acts of violence against individuals based on their sexual orientation and gender identity) is given in this chapter. Due to the acute and often life-threatening circumstances associated with homophobia, what exactly are the obligations of States to prevent such violence and discrimination? The proceeding section thus considers the various international human rights instruments related to the protection of sexual orientation and gender identity. In particular, the question addressed is: What does international human rights law expect of States?