Adv. S Surender
The recent enunciation of Hon’ble Justice D.Y. Chandrachud in respect of the Orthodox concept of “Family” while deciding an issue relating to the Rule 43 i.e., Maternity leave of The Central civil service (leave) rules 1972 has acted as a light at the end of the tunnel for the LGBTQ+ in our country. The Hon’ble justice with a discerning vision has laid down a Ratio decidendi which will be a set precedent for many judgments and will underpin the growth and acknowledgement of LGBTQ+ rights.
Justice D.Y. Chandrachud observed that “the predominant understanding of the concept of a “family” both in the law and in society is that it consists of a single, unchanging unit with a mother and a father (who remain constant over time) and their children. This assumption ignores both, the many circumstances which may lead to a change in one‟s familial structure, and the fact that many families do not conform to this expectation to begin with. Familial relationships may take the form of domestic, unmarried partnerships or queer relationships. A household may be a single parent household for any number of reasons, including the death of a spouse, separation, or divorce. Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children may change with remarriage, adoption, or fostering. These manifestations of love and of families may not be typical but they are as real as their traditional counterparts. Such atypical manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different from traditional ones. The same undoubtedly holds true for women who take on the role of motherhood in ways that may not find a place in the popular imagination.”
The ratio manifest acknowledgement of two prerogatives for LGBTQ, first one is that the queer relationship falls under the concept of family and the second one is that they are deserving not only of protection under law but also benefits available under social welfare legislation. Before going into the implications of this ration, it is pertinent to look at the germination of LGBTQ rights in our country.
Our society tabooed LGBTQ to such an extent that having consensual sex between same sex adults was termed as “Unnatural sex” and was punishable under section 377 of Indian Penal code. Naz foundation taking cognizance of prejudice caused to the sect filed a Public interest litigation before the Hon’ble High court of Delhi challenging the constitutional validity of section 377.
The Hon’ble High court of Delhi passed an astonishing and unprecedented Judgment by declaring that section 377 of IPC is in violation of article 21, 14 and 15 of the constitution of India as far as it criminalizes consensual sexual acts of adults in private and the observations in the Judgment was prodigious which is reiterated hereinafter: –
“130. If there is one constitutional tenet that can be said to be underlying theme of the Indian Constitution, it is that of ‘inclusiveness’. This Court believes that Indian Constitution reflects this value deeply ingrained in Indian society, nurtured over several generations. The inclusiveness that Indian society traditionally displayed, literally in every aspect of life, is manifest in recognising a role in society for everyone. Those perceived by the majority as “deviants’ or ‘different’ are not on that score excluded or ostracised.
131. Where society can display inclusiveness and understanding, such persons can be assured of a life of dignity and non- discrimination. This was the ‘spirit behind the Resolution’ of which Nehru spoke so passionately. In our view, Indian Constitutional law does not permit the statutory criminal law to be held captive by the popular misconceptions of who the LGBTs are. It cannot be forgotten that discrimination is anti- thesis of equality and that it is the recognition of equality which will foster the dignity of every individual.”
Despite such an unprecedented judgment by the Hon’ble High Court of Delhi, the misconception of who the LGBTs are was tabooed to such an extent that several curatives were filed before the Hon’ble supreme court of India and the matter was adjudicated by a division bench including Justice GS Singhvi and Justice S.J. Mukopadhaya. The Division bench enunciated that section 377 of the Indian penal code does not suffer from the vice of unconstitutionality and the judgment of the Division bench of Hon’ble High court was overruled and consensual sexual acts between same sex adults was criminalized again However, The Division bench of Hon’ble Supreme court made it manifest in their judgment that the Division bench has merely pronounced on the correctness of the view taken by the Delhi high court on the constitutionality of section 377 of Indian penal code and found that the said section does not suffer from any constitutional infirmity. Notwithstanding this verdict, the competent legislature shall be free to consider the desirability and propriety of deleting section 377 IPC from the statute book or amend the same as per the suggestion made by Attorney General.
That with the efflux of time ideologies of the people of our country germinated and several Petitions including writs, Special leave petitions and TP’s were filed before the apex court and this time the apex court took cognizance of the change in algorithm relating to the fight for LBBTQ rights and referred the issue to a constitutional bench (5 bench) .
That the constitutional bench passed an unprecedented judgment, the bench declared section 377 of the Indian penal code unconstitutional in so far as it criminalizes consensual sexual conducts between adults of same sex. It further enunciated that members of this sect (LGBT) are entitled for all the constitutional rights and liberties protected by the constitution as all other citizens of our country and acknowledged their right to choose partner, the ability to find fulfilment in sexual intimacies and the right not to be subjected to discriminatory behavior are intrinsic to the constitutional protection of sexual orientation.
The Constitutional bench while adjudication never went for the majoritarian view and set a precedent which lighted the dark room, the observation of D.Y. Chandrachud is inevitable and the same stipulates “The right to privacy cannot be denied, even if there is a miniscule fraction of the population which is affected. The majoritarian concept does not apply to constitutional rights and the courts are often called up on to take what may be categorized as a non- majoritarian view in the check and balance of power envisaged under the Constitution of India. One’s Sexual orientation is undoubtedly an attribute of privacy.”
Despite the Decriminalization of consensual sexual acts between the adults of same sex several questions such as the right to marriage of LGBT and the right to adopt were still unanswered however, the fresh enunciation of Justice DY Chandrachud in the case titled as Deepika Singh Vs Central administrative tribunal and Ors. bearing civil appeal no. 5308 of 2022 has kept the foundation stone for the same.
The acknowledgment of queer relationship under the concept of Family and the enunciation that they deserve benefits available under social welfare legislation is a step forward towards germination but the implication of the same is very ambiguous. The ratio will definitely act as a seed which will germinate into a tree and equip the sect with all the benefits available under social welfare legislation and protection under law.
