The author of this blog is Simran Kaur, a member of the HUMAN.DROITS Community.
The year 2023 stands out as a remarkable year as India took the Presidency of G20, emerging as the new global leader for inclusive growth and gender equality. Yet an irony unfolds as India, the flagbearer of democracy, denies thousands of LGBTQIA+ individuals the right to marry. The Supreme Court in its recent judgment held that there is no fundamental right for LGBTQ individuals to marry and left the matter in the hands of Parliament to decide. The same parliament where same-sex marriage is often referred to as a “westernised concept” and is believed to cause “complete havoc in the society”. The “inclusive” agenda was not so inclusive to include the rights of queer individuals.
While countries like Nepal and Andorra are paving the way for the recognition of marriage rights of the LGBTQ community, India took a step backwards by not taking any measures to protect the fundamental rights of these individuals. The Supreme Court’s recent judgement puts a big question mark on India’s democracy.
The Relationship Between Democracy and Human Rights
In one of the greatest speeches in history, Abraham Lincoln described ‘democracy’ as the “Government of the people, by the people, for the people”. It provides people the freedom to govern themselves through the leaders they choose. After World War II, a cold war started between the US and the Soviet Union. It was an ideological war with capitalist democratic nations on the western block and communists on the eastern block. Eventually, when binding documents on human rights were to be signed in 1966, separate treaties were made to accommodate the requirements of both ideologies as the western block gave preference to civil and political rights and the eastern block emphasized social, cultural, and economic rights. And hence, two separate covenants, the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted.
India is a signatory to both the documents and its fundamental rights reflect both civil, and political rights and; cultural, economic, and social rights. India declared itself a democratic country in 1947. The roots of democracy can be found in ancient texts and practices of various kingdoms, which is why India is often called the ‘mother of democracy’.
Democracy comes with certain rights or to put it another way, some rights are inalienable for the exercise of democracy. According to the Vienna Declaration and Programme of Action, democracy is based on the freely expressed will of the people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. Preservation and promotion of the dignity and fundamental rights of the individual is one of the core values of democracy irrespective of the social and cultural settings of the country following it. In its 2002 resolution 2002/46, the Commission asserted that integral aspects of democracy involve recognizing human rights, the fundamental freedoms, including the right to express opinions, freedom of expression, and the right to associate.
What rights do the people from LGBTQIA community have?
Gay rights are often seen as something culturally clashing with the religion and morality of a society. Some believe that such unions have a bad impact on children as they are different from conventional family rules and allowing such unions will disrupt the social balance. Therefore, the rights of these individuals are sometimes not treated as important as the rights of other individuals. Only in the past 50 years, we've seen progress with many countries decriminalizing same-sex unions. However, it's disheartening that some still go to the extreme of imposing death penalties for homosexuality.
Human rights are available to all humans irrespective of their gender, sex, and sexual preferences. Such rights are inherent to human existence and are indivisible and inalienable. The Universal Declaration of Human Rights (UDHR) is the earliest international agreement on ‘human rights’, the term which is mentioned in the UN Charter but isn’t explicitly elaborated. Articles 1, 2, 3, 5, 6, 7, and 16 of the UDHR address, respectively, the rights to equality; freedom from discrimination; life, liberty, and personal security; freedom from torture and degrading treatment; recognition as a person before the law; equality before the law; and the rights to marry and have a family. Former UN Secretary-General Kofi Annan expressed his support in August 2003 for LGBT non-discrimination, stating, “the United Nations cannot condone any persecution of, or discrimination against, people on any grounds.”
Additionally, the ICCPR provides the right to equality, right to privacy, and freedom of thought and expression. The right to marry and have a family is explicitly mentioned in the Covenants of 1966. Article 23 of ICCPR states “The right of men and women of marriageable age to marry and to found a family shall be recognized”. Similarly, Article 11 of ICESCR states that “The widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society…”.
The Indian constitution also recognises the right to equality, non-discrimination, and freedom of expression. The Supreme Court in various cases has held the right to marry as a fundamental right. However, ignorance of such rights and existing precedents when it comes to LGBTQ rights has made the community vulnerable to abuse, torture, and police brutality, and has led to discrimination in housing and jobs, ill-treatment in schools, harassment, stress, profound impact on mental and physical health, and isolation.
Democracy and Same-Sex Unions
According to the Print’s analysis of The Economist Intelligence Unit’s Democracy Index 2022, robust democracies favour legal recognition of same-sex marriages or civil unions, flawed democracies do not fully accept same-sex unions, whereas authoritarian regimes do not accept such unions. 88% of robust democracies showed legal acceptance towards such unions. In flawed democracies, these unions are deprived of legal acceptance in about 60 per cent of countries. About 90% of hybrid and authoritarian regimes do not provide any legal protection to LGBTQ individuals. However, some countries which are placed in the category of hybrid regimes like Mexico, Ecuador, and Bolivia provide legal recognition to such unions.
The primary argument against legally recognising same-sex unions is often rooted in the belief that these relationships are considered abnormal in our society, and permitting them would disrupt societal harmony. However, if the government restrains a significant portion of individuals from exercising their fundamental rights simply because some members of society are not ready, how can we claim ourselves to be a democratic nation? Isn’t it the same as saying that women should not work because their in-laws are not ready for such a change?
Another concern is the perceived notion that such unions have a bad impact on children. Even if this were true, children are equally impacted by divorces, domestic abuse in heterosexual marriages, neglect etc. However, we do not advocate for a stop to heterosexual unions based on these challenges. Furthermore, studies show that same-sex unions per se do not impact children in a bad way. According to Forbes, “growing up with sexual minority parents “may confer some advantages to children,” possibly because they are more “tolerant of diversity and more nurturing towards younger children” than heterosexual parents.”
Nations committed to democratic ideals generally prioritize civil liberties over religious and societal opinions. Religion and morality are personal opinions just as an individual's sexual preferences. Data indicates that where democracy is dominant, majority views do not encroach upon the rights of minorities. However, as democratic values decline, there is a tendency for majority viewpoints to assert themselves, resulting in bias towards majority opinions above individual rights. As Aiyar said, “The fundamental basis of modern democracy, as opposed to say Athenian democracy, is that individuals have inalienable rights that must not be trodden on by the majority,” Referring to the history of democratic reforms in the US and similar democracies, he adds that “the same fundamental democratic emphasis on individual rights that led inexorably to votes for women and slaves are today leading to the recognition of same-sex marriages in democracies”.
Conclusion
India’s stance towards same-sex unions indicates its weaker commitment towards democracy. Especially when parliament shows such distaste towards the rights of individuals. Although Indian laws permit romantic homosexual relationships, they fall short of granting these individuals the opportunity to lead a conventional domestic life. Many times, individuals who pursue homosexual relationships are not accepted by their families and their partners are left with no decision-making authority in critical situations, such as medical or financial emergencies.
It's paradoxical and somewhat ironic that in the marriage equality judgment, the Supreme Court acknowledged the discrimination and hardships faced by the LGBTQ community, yet refrained from granting any rights, despite its duty and power to safeguard the fundamental rights of citizens.
The state’s decision to deprive individuals of basic rights such as marriage and rather declare marriage as a non-fundamental right is a big question mark on India’s commitment to uphold democracy. It is disgraceful that while even less established democracies like Mexico and Nepal are acknowledging same-sex unions, India's refusal appears inconsistent with its historical reputation as the 'mother of democracy’. What example are we setting as the G20 president with such human rights violations?
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