Ever since Section 377 was repealed on September 6, 2018, the Indian LGBTQ+ community has been free to love and make love to whomever they please. Except, despite the increased visibility of pride parades, the stigma that is rampant in our society means that the queer community still doesn’t hold equal rights, especially when it comes to marriage, adoption and inheritance. In an effort to change this, advocates Tajinder Singh and Anurag Chauhan filed a plea in the Delhi High Court (HC), asking for laws and regulations to be created for the community to recognise their relationships, allow them to get married or divorced, and adopt a kid. However, on Monday, July 8, the Delhi HC declined to entertain this plea and said that drafting laws for such reform was the responsibility of the Legislature.
A Division Bench of Chief Justice DN Patel and Justice C Hari Shankar said, “It appears that this court will be extremely slow to give direction to draft legislation or regulation or policy,” stating that the centre was free to do so, but absolving the court of any such responsibility to direct them.
The petition sought to constitute a committee to work towards the welfare and protection of members from the LGBTQ+ community in an attempt to help them secure equal rights and normalise their choices. It acknowledged this as an important way to deal with the fear, stigma and shame involved in coming out in the country, despite there being a ‘stamp of legality’ on their bedroom behaviour.
According to Indian legal news website Bar and Bench, the petition pinpointed that, "..the members of LGBT community have fundamental rights i.e. to get equal treatment in society and by not providing law, rules and regulation for registration of marriage etc., the state is discriminating among the citizens of India on the basis of gender; and whereas right to get married is one of the precious part under Right to Life i.e. Article 14 and 21 of the Constitution of India…"
The plea also wanted to make changes to the Hindu Marriage Act, and other personal laws to recognise marriage and adoption rights. In its reply to the petition, the Centre said that it is already taking steps to help the transgender community, including a recent ruling by Madras HC that recognises them as brides. But even as this is a win, it’s only the tip of the iceberg.
The petition also stated that "Not only society as a whole but State machinery also treat the LGBT community differently, especially police. They are a regular victim of rights violations. They are deprived of their basic human right and right to life which includes the right to enjoy life properly."
The petitioners felt that sex education was the first stepping stone to conquer and could potentially help the LGBTQ+ community feel more comfortable discussing their sexual choices with friends, educators and loved ones.
"Law enforcement agencies such as police also need sensitisation so that they will be able to appreciate the genuine concerns of members of the LGBT community. Similarly, our media and film fraternity is required to be more considerate while depicting such people in their shows and films respectively," the plea said, stressing the importance of a proper system in place to ensure that any lesbian, gay, bisexual, transgender or anyone else on the gender spectrum is allowed to be who they are without discrimination.
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