Written by Sakshee Jaiswal and Muskan Joshi of Renaissance Law College
The constitution of India declares that every citizen of India is equal. However, inequality does not cease to end. Many people are bearing this and a great example is the LGBTQ community (lesbian, gay, bisexual, and transgender). The struggle for LGBTQs has not yet ended even after the abolishment of 377 sec. of IPC. It is because there are certain obstacles that gay partners have to deal with in the present scenario. On one hand, India is known for its unity in diversity where the different groups of people get together to reside in society and on the other, gay partners are facing a lot of discrimination and not being accepted by society. Is this the accurate denotation of the expression ‘unity in diversity’? Can we say that the battle for LGBTQ has ended with declaring 377 as unconstitutional? No, we cannot say that the battle has ended for them, in fact, the battle has just started.
In India marriage is an important tradition practiced by all the families. We can explain marriage as a union of two people who are publically legalizing their relationship and making it perpetual. It is a special vow which ties two people together that persists until death. However, regrettably, marriage in India is restricted to a male marrying a female. India has not legalized gay marriage so far and has left the gay partners unidentified by the law and the society. The heterosexual couples are getting married, having kids also by surrogacy or adoption, and the gay partners not even have the right to get recognized as a couple in the eyes of law. Optimistically a project named ‘Marriage Project’ has been started in this regard which will aim to legitimate same-sex marriage in India.
Since the marriage of gay, is not legitimate in India; they are deprived of having a child by adoption and now also by surrogacy and thus leaving them childless. The new surrogacy bill repudiates the gay partners as parents who would want to start a family of their own as well as abandoning thousands of orphans cut off from having a home. The rate of foundlings is increasing at a great speed in India. The Indian law anticipates deserted children to be raised without a family instead of being adopted by gay partners. It is so hapless that a single woman can have a child, but the gay partners who are willing to take care of a child do not have any legal rights.
INDIAN SYSTEM OF CHILD ADOPTION FOR LGBTQ
The fight for the community is still not over. In India, people belonging to the lesbian, gay, bisexual, transgender, queer (LGBTQ) community face many legal and social difficulties that are not experienced by others. Though the country has repealed its colonial-era laws that directly discriminated against gay sex and transgender identification, even then many legal protections have not been provided for which includes adoption rights as well. The Central Adoption Resource Authority (CARA) guidelines prevent foreigners in same-sex relationships from adopting children in India. CARA is a statutory body of the Ministry of Women and Child Development that regulates the adoption of children by foreigners and Indian residents through inter-country and in-country adoption, regulations respectfully.
In 2014, the Union Cabinet had decided to stop same-sex couples from adopting children. And in form of becoming adoptive parents this would have also prevented the lesbian, gay, bisexual and transgender (LGBT) community. While considering the amendments to the Juvenile Justice (Care and Protection of Children) Act, 2000, the cabinet took this decision. However, the draft bill which talks about rehabilitation and adoption of children does not allude to disallowing same-sex couples from adopting.
There are approximately 480,000 transgender people in India. Through a legislation passed in 2019 transgender people in India are allowed to change their legal gender post-sex reassignment surgery, and have a constitutional right to register themselves under a third gender. Additionally, some states protect hijdas, a traditional third gender population in South Asia, through housing programmes, and offer welfare benefits, pension schemes, free operations in government hospitals, as well as other programmes designed to assist them.
The Supreme Court of India in 2018 decriminalized consensual homosexual intercourse by reading down Section 377 of the Indian Penal Code and excluding consensual homosexual sex between adults from its ambit. Homosexuality was never illegal or a criminal offence in ancient Indian and traditional codes but was criminalized by the British during their rule in India.
Acceptance of same- sex couples was found to be highest among Hindu respondents. In favour of LGBTQ rights where despite recent political movements, there remains a significant amount of homophobia present among the Indian population, with around half of Indians objecting to same- sex relationships according to a 2019 opinion poll. In the 2010s, LGBT people in India increasingly gained tolerance and acceptance, especially in large cities. Nonetheless, most LGBT people in India remain closeted, fearing discrimination from their families, who might see homosexuality as shameful.
The Supreme Court, in the case of Navtej Singh Johar vs. Union of India, held that the Indian Constitution bans discrimination on sexual orientation and sex, and declared such discrimination to be unconstitutional. Similarly, Supreme Court also ruled in the case of National Legal Services Authority vs. Union of India, that discrimination on the basis of gender identity is constitutionally prohibited. The “gender identity, in our view, is an integral part of sex and no citizen can be discriminated on the ground of gender identity, including those who identify as the third gender. We, therefore, conclude that discrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of transposing equality by the law or the equal protection of the law guaranteed under our Constitution”, said by the K.S. Panicker Radhakrishnan, a Supreme Court Judge.
India has now been witnessing positive achievements with changes and approaches towards bringing legal changes according to the changing demands and need of the society. But the LGBT community still has to suffer because today even, it hasn’t been able to change the approach and thought process of people. Initially, the fight was for an identity, and now after achieving it, the fight is to having other legal rights which they should get like every other citizen of the society gets.
The question that deserves attention right now is whether, in every way justice has been actually served to the LGBT community? Unfortunately the answer to this is no. What conditions are required to a parent to adopt a child? CARA alludes eight heads for the eligibility criteria for prospective to adoptive parents.
None of the conditions alluded in the eight heads of CARA talk about LGBTQ parents. There is nothing wrong for the community to expect the same as of the normal person having a normal life that every other person gets to lead. It should be rightfully made legal whether it is rearing a child, raising them up or doing everything that a normal couple and a parent do.
If this amendment is made in CARA, it will help in bringing a revolutionary change for the whole LGBT community, since they are still finding it practically difficult to secure their place in the mainstream society and its outlook towards what is ethically right and what is ethically wrong. Even though they are now allowed to live together and stay as a couple legally, they are still not allowed to adopt a child and feel happy as all other parents feel do.
Law is dynamic; due to the needs and demands of the time, it changes accordingly. The fight for the LGBT community is not over. They are still struggling to get the privileges and rights that other members of the society enjoy. As it is well said, “Equality means more than passing laws. The struggle should really win in the hearts and minds of the community, where it really counts”. And hence, it becomes very essential for the legal body to review its provisions and amend it to give adoption rights to the LGBT community.
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