#NyaayaUpdate: Nyaaya x Official Humans of Queer Foundation Collaboration on Instagram

Love and Queer Relationships in India: An Overview

We recently held an insightful Instagram Live session discussing “Love and Queer Relationships in India.” Exploring the significance of landmark judgments, such as NALSA v. Union of India (2014) and Navtej Singh Johar v. Union of India (2018), we spoke about the right to self-identification, freedom to choose life partners, and the decriminalization of consensual adult relationships. Here’s a quick summary for those of you who missed the live.

1. April 15th is the anniversary of the landmark NALSA v. Union Of India case and is commemorated as the National Transgender Day. Why is this judgement important for queer rights?

The NALSA judgement came out around a time when the LGBTQ+ community had suffered a major setback. In 2013, in Suresh Kumar Koushal vs. Naz Foundation  a three judge bench of the Supreme Court upheld the constitutionality of Section 377 of the Indian Penal Code (IPC) which criminalized homosexuality. That verdict was eventually overturned 5 years later in Navtej; he NALSA verdict remained as is. Three key things to remember about NALSA are:

• It recognised the “third gender” as a legitimate gender category for all official purposes.
• It endowed transgender persons with the right to self identify their gender.
• It extended reservations for transgender persons in educational and professional sectors under the “OBC” category.

2. Does the law give us the right to love freely?

Anyone above the age of 18, has the right to love and have consensual sexual relationships with anyone they wish to irrespective of their gender identity and sexual orientation. No one can harass you, hurt you, or complain to the police simply because you are a part of the LGBTQ+ community.

3. What are the implications of the Navtej Singh Johar judgment? 

To understand that, we must revisit some previous judgments on love and relationships:

Shafin Jahan vs. Asokan K.M. (2018): The Supreme Court held that the right to marry a person of one’s choice is an integral part of the right to life and personal liberty guaranteed under the Constitution of India, and that Hadiya, a woman who had converted to Islam and married a Muslim man, also had the right to choose her own life partner and choose a religion.

Lata Singh vs. State of UP (2006): The Supreme Court held that inter-caste marriages are a part of the right to life and personal liberty guaranteed under the Constitution of India and that the choice of a life partner cannot be interfered with by anybody, including family members. The Right to marry is a part of right to life under Article 21 of the Indian Constitution. Lata Singh, the petitioner, entered into an inter-caste marriage.

Indra Sarma vs. V.K.V. Sarma (2013): The Supreme Court held that Live-in or marriage like relationships are neither a crime nor a sin though socially unacceptable in this country. The decision to marry or not to marry or to have a heterosexual relationship is  personal.

Then came the Navtej Singh Johar judgment in 2018 judgement-  considered a watershed moment in the history of LGBTQ+ rights. It finally decriminalised consensual sexual relationships between consenting adults. It held that parts of Section 377 of the Indian Penal Code violated the fundamental rights of homosexual people under Articles 14, 15 and 19(1) of the Indian Constitution, as well as the Yogyakarta Principles which prohibits discrimination on grounds of sexual identity. 

4. What are the rights that members of the LGBTQ+ community received after the judgment? 

Previously, consensual sexual acts between adults of the same gender were punishable under the law with jail time and a fine. After the Navtej Singh Johar judgment, such sexual acts are no longer punishable under Indian law. This means that you cannot face any jail time for engaging sexually with a person of any gender, including that of the same gender or a transgender person, or engaging in consensual intercourse with them. This means you can:

• Be in a relationship and love a partner of any gender.
• Have consensual sexual intercourse with a partner of any gender.
• Have the right to move freely in any public space with your partner.

5. Can same-sex couples now marry under Indian law?

Marriage in India is determined by personal laws and the secular law i.e., the Special Marriage Act, 1954, which still retains the binary genders as eligible parties. This is a matter being considered by the Supreme Court of India and we can expect a ruling on this sometime soon.

6. What is the legal recourse available to a person when they face discrimination and violence on the basis of their gender identity or sexual orientation?

If you are subjected to any violence, where you are injured or hurt, you have a right to complain and file a First Information Report (FIR) with the police regardless of your gender or your sexual orientation. You can complain against anyone, irrespective of their gender. 

If someone injures you or they know that their actions would injure you then it is a crime under the law. You will have to file an FIR with the help of Section 321/350 of the Indian Penal Code, 1860.

• Section 321 of the IPC deals with voluntarily causing hurt, which means someone intentionally doing something to hurt you, knowing that it will likely cause you harm.
• Section 350 of the IPC addresses the use of criminal force, which means someone using force against you without your consent, with the intention of committing a crime or causing injury, fear, or annoyance.

If someone intentionally hurts you and you suffer injuries as a result, you have the right to file an FIR under Section 320/322 of the IPC. 

• Under Section 320 of the IPC, grievous hurt is defined as specific types of severe injuries, such as emasculation, permanent loss of sight or hearing, privation of a limb or joint, disfigurement of the head or face, fractures, or injuries that endanger life or cause severe bodily pain for at least 20 days.
• Section 322 of the IPC addresses the voluntary causing of grievous hurt. If someone intends to and actually causes grievous hurt to another person, they can be held liable for the act.

It is also considered a crime to threaten or intimidate someone through gestures or preparations to harm them. You can file an FIR under Section 350/351 of the IPC if you experience such threats.

In cases where someone harasses or blackmails you, or threatens to expose personal information, you can file a complaint under Section 503 of the IPC for criminal intimidation.

Remember, it is important to seek legal advice and consult with authorities to understand the specific laws and procedures applicable to your situation.