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Why Can't Everyone Have Equal Rights? A Question from LGBTQ+ Community

Abstract

The article discusses the struggles of the LGBTQ+ community in India in their fight for fundamental human rights, including the right to adopt children. Despite laws such as the Hindu Adoptions and Maintenance Act and the JJ Act, same-sex couples are currently ineligible to be prospective adoptive parents due to the lack of recognition of same-sex marriages in India. The article argues that denying LGBTQ+ couples the right to adopt children prevents them from a fundamental source of happiness and love they deserve as much as anyone else. The article also touches on the history of LGBTQ+ oppression in India, including the now-decriminalized Article 377, which made homosexual acts punishable by up to 10 years in jail. The article describes the legal battles fought by the LGBTQ+ community, including the landmark Navtej Singh Johar v. Union of India case, which partially decriminalised Section 377 and was a significant victory for LGBTQ+ rights in India.


The article concludes by emphasising the importance of understanding and accepting the LGBTQ+ community, as they are no different from anyone else in their pursuit of happiness and fundamental rights. The denial of these basic rights hinders the progress and happiness of society as a whole.

 

If I ask you, what are you expecting from life? What would be your response? The ultimate answer would be happiness. Now, please tell me how you would feel if someone placed arbitrary constraints on your happiness. Unfair, saddened, right? That's precisely what all those LGBTQ+ couples out there are experiencing. They have to fight for every basic need; where is the equality now? Where is democracy now? The blindfold on Lady Justice symbolises impartial justice without any prejudices, biases or discrimination, just equality before the law; she is renowned for her ability to uphold equality. Then why is there a blind spot towards all those people who have done nothing wrong and are simply seeking happiness, the same as everyone else? Now tell me, are they any different? No. Then why aren't they given equal rights? Children, replicas of gods themselves, deserve to receive parental love still, there are more than 29.6 million orphaned and abandoned children in need of adoption (According to Section 2/2) of the Juvenile Justice (Care and Protection of Children) Act, 2015 (" Act"): "Adoption means the process through which the adopted child is permanently separated from his biological parents and becomes the lawful child of the adoptive parents with all the rights, privileges and responsibilities that are attached to a biological child.") This figure would not have been this high if the LGBTQ+ community had the right to adoption too. With parental love, they can provide kids with a better life. Why are we preventing these couples from their fundamental yet priceless source of happiness when they also deserve the chance to be called parents? ADOPTION LAWS OF INDIA The laws governing adoption in India include the Hindu Adoptions and Maintenance Act (HAMA), 1956 and the JJ Act. HAMA allows adoption for individuals belonging to Hindu, Buddhist, Jain, Sikh, and other religions under Hindu Law. The JJ Act extends adoption options to individuals of any religion if they meet the Central Adoption Resource Authority (CARA) criteria. The eligibility of prospective adoptive parents is determined by Section 57 of the JJ Act and Regulation 5 of AR, which require a stable marital relationship of at least two years. However, same-sex couples are currently ineligible to be prospective adoptive parents ("PAPS") due to the lack of recognition of same-sex marriages in India. They deserve to have a family too. How can society accept them when even the law is disregarding them? This world will be a much better and happier heaven if we become less judgmental and understanding, or at least not take away someone suitable for happiness. In India, 2.5 million people belong to the LGBTQ+ community, excluding the ones who are still closeted or prefer not to answer. Even today, many are afraid to come out or reluctant to identify as part of the LGBTQ+ community because of the fear of us judging them or not treating them righteously, simply for asking for their happiness.


From Hesitation to criminalization

Recall the day when openly gay people were hounded; if they came out, they were forced to quit their jobs, stripped of their fundamental rights, and even penalised for advocating for them. Pardon another question: How many queers do you observe working in jobs that are legally recognised? Even now, some five years after the decriminalisation of Article 377, when the LGBTIQ+ community's oppressions were finally acknowledged, and their sexuality was made lawful, they continue to fight for their fundamental liberties". "Section 377 in The Indian Penal Code: Unnatural offences-Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. Explanation-Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section." From 1861 to 2018, being queer in India meant risking ten years in jail for "carnal intercourse against the order of nature." In 2001, the Naz Foundation filed a Public Interest Lawsuit Challenging Section 377 as a violation of the Indian Constitution's fundamental right against discrimination. In 2009, the Delhi High Court ruled in Naz Foundation vs NCT of Delhi that Section 377 was unconstitutional, decriminalising homosexuality in India for the first time. In 2013, the Supreme Court reversed the Delhi HC's decision in Suresh Koushal and Anr vs Naz Foundation and Others, stating that it was up to the Centre to legislate on the issue. The Supreme Court partially decriminalised Section 377 in the Navtej Singh Johar v. Union of India (AIR 2018 SC 4321), a victory for LGBTQ+ rights in India. In this decision, the Supreme Court addressed the problems that the LGBTQ+ community was having in defending their fundamental rights. In the KS Puttuwamy case, the Apex Court determined that Article 21 included the right to privacy. Then finally, on September 6, 2018, the SC read the clause's contents as they relate to consenting same-sex relationships.


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Only Florida had a law that forbade homosexual people from adopting children, even though numerous states had passed anti-same-sex marriage legislation before the Supreme Court's seminal Obergefell v. Hodges decision in 2015. In this case, a foster dad wanted to adopt his two foster sons. Although deemed a suitable parent, his application was turned down only because Florida law forbade the adoption of homosexuals. The court determined that there was no justification for this general exclusion. The Department of Children and Families in Florida no longer takes sexual orientation into account when considering a child's suitability for adoption. Other than this, adoption by same-sex couples is already permitted in nations like Spain, Belgium, Spain, etc. India has always fought against injustice, dismantled harmful laws, and evolved them according to changing times and current requirements, such as triple talaq. Hence, this time, the LGBTQ+ community is keeping its faith in the Indian constitution; please let the veil from your eyes slip away and pay attention to them.


References


*This article was authored By Khushi Yadav and Bhavya Singh, Students from Symbiosis Law School, Noida and reviewed by Kushal Deep Singh, Student from Symbiosis Law School, Noida.

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