A year after 377 verdict: Long battle for civil rights still ahead
A year ago, the Supreme Court handed victory to 34 people from across India who challenged Section 377 of the Indian Penal Code, a British-era law that criminalised consensual, adult, same-sex relationships and fostered a climate of fear and discrimination against the entire Lesbian, Gay, Bisexual and Transgender (LGBT) community.
Now, petitioners and other members of the community say that although Section 377 was read down on September 6, 2018, the legal battle for their civil rights has only just begun.
According to them, the right to own and inherit property, nominate their same-sex partners on hospital and insurance forms, and receive legal recognition of same-sex relationships and marriage were some of the main demands. Other petitions pertaining to reservations for trans persons in government jobs and educational institutions, and seeking the formation of Transgender Welfare Boards, among other things, are in the works.
“When I get calls from young people all over India, they want marriage, insurance, civil and economic rights. The cap on the bottle has been removed. It will be a multi-pronged fight,” said Menaka Guruswamy, senior Supreme Court advocate and one of the lawyers in the main Section 377 case titled Navtej Johar versus Union of India.
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The preparations have already begun. Lucknow-based petitioner Arif Jafar said he and his lawyers were finalising a petition to ask for same-sex partners to be allowed to nominate each other in insurance and property documents. Hotelier Keshav Suri said he was working on a petition asking for spousal recognition and benefits — such as joint bank accounts.
“We may not immediately ask for marriage equality, because that is a longer battle but start on the lower-hanging fruit,” said the 34-year-old, who is married to a French man. “My marriage is recognised in France but not here, I want to change that,” he added, but cautioned that consultations and strategising had not happened yet.
Another petitioner, Suma, a trans woman, will soon petition the Karnataka administrative tribunal over reservations for a government position.
Bengaluru-based activist Akkai Padmashali said the past year had seen greater recognition of LGBT rights by bureaucrats, but raised issue with the Transgender Persons (Protection of Rights) Bill 2019, which was recently passed by the Lok Sabha. “If it passes in its current form, I will have no choice but challenge it in the SC,” she said.
The bill, first moved by the government in 2015, has been mired in controversy with many activists complaining it falls short of safeguarding their rights.
The Human Rights law Network (HRLN) will soon file public interest litigations for several transgender petitioners asking states to take steps for framing social welfare schemes, including setting up Transgender Welfare Boards, providing identity cards, toilets, and free medical care, a lawyer at HRLN said.
In July, trans activist Grace Banu filed a public interest litigation in the Madras high court seeking reservation for trans persons in education and public employment. Currently, Tamil Nadu allows reservation in the Most Backward Classes category. The petition seeks separate reservation for those persons who identify as trans.
“After the Section 377 verdict, people expected things to change much faster than they have on the ground, with problems of lack of shelter homes/safe houses, sensitive police machinery, lawyers and judges still very much present. In fact, the real struggle begins after the positive court orders where the courts have reaffirmed their right to choice, and people struggle to find jobs, rented houses while facing constant emotional pressure from families to come back,” said Delhi-based lawyer Amritananda Chakravorty.
On September 6, the Delhi high court will hear a habeas corpus case involving a lesbian in her 30s, who was allegedly separated from her partner by her family. The woman who is married and is reportedly a victim of domestic violence, has been staying at a city shelter home in the city.
Over the past 12 months, judgments in various high courts around the country expanded the scope of human rights for LGBT people. In October 2018, a trans man named Jeeva petitioned the Karnataka high court to change his name and gender on his school and college certificates. The judge directed the state’s education department to ensure that other trans persons are able to do the same without the court’s further intervention in this matter.
In April 2019, the Madurai bench of the Madras high court upheld the marriage between a man and a trans woman, who approached the court after registration authorities refused to recognise the union, saying that a trans woman couldn’t be considered a bride under the Hindu Marriage Act, 1955.
This was the first judgment in India where the right to marry under Article 21 of the Constitution was affirmed for transgender persons, noted the Bengaluru-based Centre for Law and Policy Research.
There are other challenges, too. In October 2018, the SC dismissed a petition seeking civil rights for the LGBT community and refused to review the decision in July 2019 – saying the issue had already been dealt with in Navtej Johar vs Union of India.
Guruswamy said the next battle for LGBT rights may be a case in a district court that eventually gets bumped up to the apex court on appeal.
“Young people are already approaching district and high courts, police stations and registrars and demanding their rights. That is the way the next big case will come,” she added.