Queer love not 'non-indigenous'; LGBTQIA+ individuals grappling with stigma despite Navtej judgment: Justice SR Krishna Kumar

Justice SR Krishna Kumar recently shed light on the historical nuances of queer identities in the Indian subcontinent, challenging the narrative that deems queer love as 'non-indigenous.'.Referring to the precolonial history of India, Justice Krishna Kumar emphasized that queerness was not merely tolerated but was an integral part of ordinary life in various regions and eras.He highlighted that while violence against LGBTQIA+ individuals existed, the societal perspective was not necessarily one of rejection and that instead, many manifestations of queer identity were considered as ordinary as their heterosexual or cisgender counterparts.Justice Krishna Kumar called for a reevaluation of the false dichotomy between Western and Indian values, which seeks to state that queer love is 'non-indigenous'. He added that the 'born this way' narrative oversimplifies the systemic and structural discrimination faced by the queer community"Indian media has yet to question the false dichotomy between Western and Indian ‘values‘ which seek to state that queer love is ‘non–indigenous.’ The ‘born this way‘ narrative is thus very often a convenient take, since it localises the ‘problem’ in an abstract idea of ‘mindsets’ of people instead of inspecting how discrimination against the queer community is systemic and structural. It offers no insight into the institutional challenges faced by the community," he said..The Karnataka High Court judge was delivering the 17th PGC Chengappa Memorial Lecture hosted by the Lahari Advocates Forum in Bengaluru on December 8..Further, Justice Krishna Kumar stated that despite the decriminalization of queer relationships and their legal recognition in the case of Navtej Singh Johar v Union of India, LGBTQIA+ individuals still grapple with stigma and invisibility, facing discrimination in employment, healthcare, and personal rights."Despite the Hon’ble Supreme Court recognizing that sexual orientation is a core and innate trait of an individual, members of the queer community continue to face economic, social and political marginalisation in several tangible and intangible way," Justice Krishna Kumar said..Justice Krishna Kumar emphasized the absence of explicit constitutional recognition for the right to marry a partner of choice in India and underlined that it may give rise to 'lavender marriages'—marriages of convenience to conceal sexual orientation due to societal stigma.Further, he drew comparisons with other nations where constitutional provisions protect LGBTQIA+ rights comprehensively.."While the constitutions of Mexico, New Zealand, Portugal, South Africa, and Sweden provide protections based on sexual orientation, India still lacks a basic law that recognizes the protection of rights of people belonging to the LGBTQIA+ community or criminalizes any harassment or discrimination against them. Besides allowing same-sex marriages, adoption and surrogacy, countries such as Bolivia, Ecuador, Fiji, Malta, and the UK have gone further and enshrined the right to equality for citizens based on sexual orientation and gender identity in their constitutions. India, however, has no legislation that would recognise the rights of people from the LGBTQIA+ community with respect to marriage, adoption, surrogacy, and health," Justice Krishna Kumar stated..However, amidst these challenges, Justice Krishna Kumar expressed optimism, noting positive developments such as LGBTQIA+-friendly corporate policies, legal efforts for anti-discrimination laws, and growing visibility in media and popular culture. The private sector's role in effecting cultural change was emphasized, with Justice Krishna Kumar highlighting the increasing inclusivity in workplaces as a catalyst for broader societal shifts..In conclusion, he underscored that the conventional arguments against LGBTQIA+ rights are steeped in cultural, religious, or traditional perspectives, often neglecting the fundamental principles of equality and non-discrimination.Justice Krishna Kumar remarked that India still has a long way to go in ensuring the right to equality and the right to life and personal liberty of the queer community."The very existence of queer people challenges the systemic and structural biases deeply rooted in the cis-normative, heteronormative Indian society. The lack of adequate legislation and anti-discrimination laws has prevented any progress from the Navtej judgment of the Supreme Court," he added.Within legal frameworks and human rights discourse, the advocacy for LGBTQIA+ rights is firmly rooted in the pursuit of equitable treatment under the law that transcends considerations of sexual orientation or gender identity, Justice Krishna Kumar highlighted.According to him, approaching these discussions necessitates sensitivity and the acknowledgment of the diversity of perspectives shaped by individual beliefs, cultural contexts, and legal frameworks."Nevertheless, international human rights standards increasingly promote the notion that all individuals, regardless of their sexual orientation or gender identity, should receive equal treatment and protection of their rights," he added.