Since the landmark judgment of 2018, a lot has changed in India, making it another Asian nation to recognize LGBTQ+ rights, especially making the concept of homosexuality natural and more definitive among the general audience. But the question still arises, ‘whether it is the end or just another beginning?’
To understand Non- Heteronormativity, the first essential is to get a brief understanding of what the term ‘Hetero’ means? The Heteronormative ideology refers to the belief that there are two separate and opposing genders with associated natural roles that match their assigned sex and that heterosexuality is a given. According to this, it is a default belief that considers gender-based roles and expression of birth-oriented sexuality correct and behaviors depicting same-sex relationships as something unusual, leading to a culture of Homophobia. All of this is related to the institutions of marriage and family as a social unit in our country and how it negatively affects and prejudices the very minds of individuals.
THE HETERONORMATIVE IDEA OF MARRIAGE
Misogyny and Discrimination are perpetual in the lives of the LGBTQ community, also considered as a ‘sexual minority,’ a word which is highly negated by itself as they want to be accepted in the same way any male or female is treated in society. In some cultures, the right to life is barely provided to trans men and women. Traditional associations like ours are suffering from the ‘homophobic syndrome’ that rejects the notion of diverse sexuality except that of the classically embedded male and female partnership.
Indian subcontinent still differentiates in workplace equity, professional industries, sexual identification, and the concept of ‘coming out.’ People tend to hide their identity to find respect and embrace the already flawed system while justifying themselves as ‘normal.’ There is a lack of radical approach and awareness in this sphere, which is why we are still not quite over the hypothesis of taboo and shame in the context of homosexuality.
Let’s look at the cultural conservatism and patriarchal nature of Indian society, discussing same-sex marriages in a place where inter-caste relationships are examined with the edge of an eye. It is a universally heated debate that needs to be raised at the political and legal stages. Rightists and radicals mostly do not share their ideologies of institutional marriage, as the former are entrenched in the proposition of patriarchy. At the same time, the latter considers interdiction as an assault on the freedom and human rights of the individual.
STATE & LEGAL FRAMEWORK
In November 2022, a series of pleas and petitions by gay activists and couples across the territory were filed in the country’s apex court regarding granting the legal status of same-sex marriages. Among them were the famous social media influencers and star duo of Supriyo Chakraborty and Abhay Dhang seeking the right to marriage extending to the LGBTQ+ community while also the status quo being violative of the right to equality and life under articles article 14 and 19 of the Indian constitution.
According to NALSA v UOI, the Supreme Court, for the first of its instance, defined the term ‘third gender’ and added that they should not be discriminated against on the grounds of sex, including their gender identity, under articles 15 and 16. The same is a ceiling-breaking judgment in itself because it legally secured the rights of non-binary individuals and the human rights of transgender people in our society.
In Suresh Koushal v Union of India, Justice Chandrachud explicitly stated that it is wrongful to deny the right to live with dignity and privacy to a specific section of persons who are not ‘mainstream’ because the existence of constitutional protection of basic fundamental rights is granted to each and every citizen of the country. Hence, it concluded with “Sexual orientation is an essential attribute of privacy. Discrimination against an individual based on sexual orientation is deeply offensive to the dignity and self-worth of the individual.” (KS Puttaswamy & Ors. v UOI)
Finally, in Navtej Singh Johar v UOI, a 5-judge-led bench decriminalized homosexuality and section 377 of the Indian Penal Code. It also declared the same as unconstitutional, violating articles 14, 15, 19, and 21, i.e., the basic fundamental rights of the LGBTQ community on the grounds of their sexual orientation.
As observed from various democracies worldwide, there have been many differences across regions regarding their culture, history, and politics. Similar is the case of non-hetero normative marriages being divergent from the typical married affair between people of distinct genders.
The United Nations, being an honored and respectable international organization, should come forward and take steps to improve the condition of the LGBTQ community and protect them from exploitation and abuse. Although there are no explicitly created committees, treaties, conventions, or mechanisms to do the same, there are several provisions and articles of the Universal Declaration of Human Rights (UDHR) to eliminate and monitor the issues while also addressing the future concerns of the clique.
Articles 16 and 22 of the UDHR discuss the right to marry anyone without the limitation of race, nationality, and religion and the right to social security and dignity. On the other hand, International Covenant on Civil and Political Rights (ICCPR) prohibits discrimination on the grounds of sexual orientation under articles 2 and 26, also including violative laws punishing consensual adult sex.
In the 21st century, it is high time we keep a balanced approach to gender prejudices and sexual orientation of binary and cis-hetero individuals in society. There is a need for deep research and experimentation to blur the lines of subtle and extreme abuse of sexual minorities and provide for them the bare minimum. Gender diversity is here to stay, and equality should be celebrated, not disputed.
Author’s Name: Shalini Singh (Dr. Ram Manohar Lohiya National Law University in Lucknow)