In 1994 when I started law school, if someone had told me that same-sex relationships or the right to gender identity would be recognised, I would have shook my head in disbelief. Twenty-five years ago, there was no articulation of the constitutional rights to sexual orientation and gender identity in India. A challenge to Section 377 of the Indian Penal Code was nowhere in the horizon.
Is it not therefore quite remarkable that we are celebrating the first anniversary of the decriminalisation of Section 377 now? To see this battle start, be part of the fight and witness it being won in one’s lifetime is unbelievable. We have moved from a society where transgender, intersex, lesbian, gay, bisexual and gender non-confirming persons were treated as criminals to the constitutional recognition of the rights to sexual orientation, gender identity and gender expression. The recognition of these rights impacts not only LGBTI persons, but everyone, for it protects all our rights of self-expression, equality and autonomy.
The Supreme Court’s decision in Navtej Johar v. Union of India not only laid the ground for stronger equality recognition such as the judgment in the Joseph Shine case decriminalising adultery (2018) and the judgment in the Sabarimala case recognising the rights of women to enter religious shrines (2018), but also led to the decriminalising of same-sex intercourse in other jurisdictions such as the High Court of Botswana and inspired a constitutional challenge to Section 377A in Singapore.
Steps for equality
Decriminalisation is the first step towards recognition of equal rights, but the two cannot be conflated. The Navtej decision has to be followed by positive steps for equality. Transgender persons still face a number of legal barriers and LGBTI people continue to face discrimination, exclusion, abuse and harassment at work, school, health care settings and in public places. One reason for this is that we still do not have an equality and anti-discrimination statute that would protect persons from discrimination on different protected grounds. The only statute which is close is the Rights of Persons with Disabilities Act, 2016. However, this only addresses discrimination against persons with disabilities in the public sector and does not address the private sector. Legislation such as the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and the Protection of Civil Rights Act, 1955 make certain caste discriminatory acts criminal offences but do not provide civil remedies of injunctions or damages for acts of discrimination. We have the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, but this is limited to sexual harassment at work. The Transgender Persons (Protection of Rights) Bill, 2019 addresses only transgender and intersex persons’ rights and there is severe criticism of this Bill. The rights of equality and non-discrimination on the ground of sexual orientation are not covered under this Bill.
An overarching legislation
The need of the hour is an overarching legislation that guarantees equality to all persons on the basis of sexual orientation, gender identity and expression, sex, caste, religion, age, disability, marital status, pregnancy, nationality and other grounds. The law should impose obligations of equality and non-discrimination on all persons, public and private, and in the areas of education, employment, healthcare, land and housing and access to public places. It should provide for civil remedies including injunctions to stop discriminatory behaviour, costs and damages, and positive action to make reparations.
Most importantly we need an equality law to define what equality would encompass. In the current situation, particularly in Jammu and Kashmir where people are arrested and communication channels have been blocked, an equality law may seem to be a luxury when basic freedoms of people are taken away. Here the Supreme Court comes to our rescue because it held in its privacy judgment in K.S. Puttuswamy v. Union of India (2017) that equality and liberty cannot be separated, and equality encompasses the inclusion of dignity and basic freedoms. Situations like what we see in J&K also show us that we need an equality law that not only addresses discrimination against individuals but also addresses structural forms of discrimination and exclusion. On the first anniversary of Navtej , the time is right for these reforms, so that we are able to see these battles being won in the next 25 years.
Jayna Kothari is a Senior Advocate