“History owes an apology to the members of the LGBT+ community and their families for the delay in providing redressal for the ‘ignominy’ and ‘ostracism’ they have faced through the centuries,” said Indian Supreme Court Justice Indu Malhotra while decriminalizing homosexuality. It is clear that there are several discriminations against LGBT+ which exist. But, has the law actually meant this apology?

Members of the LGBT+ community in India received their legal recognition in 2018 through the case of Navtej Singh Johar vs. Union of India. However, the community has a long way ahead to achieve their rights. “Saving Chintu” is a short film that has received global attention for highlighting not only the adoption of rights for LGBT+ couples, but for opening another pandora’s box which needs dire attention in India: the lives of HIV positive children in orphanages.

The film ‘Saving Chintu’ is a story of an Indian-American LGBT+ couple trying to adopt an HIV positive orphan, Chintu, and the methods they must take, which are not legal, to build a family and give Chintu a chance at life. While directing this film, Director Tushar Tyagi researched multiple nuances of LGBT+ couples and their existence in Indian society after the decriminalization of homosexuality. He mentioned:

India has recognized LGBT existence, but the rights for them seem far away. It has been two years since the decriminalization of Section 377. However, in a broader sense, the laws can evolve to accommodate individuals from minorities. But it is also important for the law to accommodate protections. Cultural acceptability is still missing, the LGBT existence has to be normalized through the means of films and media to reach out to a broad audience.

Multiple organizations such as the President’s Contingency Fund for Children and Youth and the World Bank have documented the problems suffered by HIV-positive orphans in India, such as social exclusion, extreme economic uncertainty, illiteracy, malnutrition, illness, exploitation of labor, and physical and sexual abuse.

Indians who are HIV-positive are discriminated against at such a large level. Living in America, health centers were basic rights in my view. However, the conditions are not the same in India. Many orphanages in India are under-funded and do not provide basic health services. Services for HIV-positive children remain unspoken.

The condition is not only staggering for the orphans, but also for the social activists who are working to de-stigmatize the issues. Not only are the issues of health services a problem, but the physical abuse is also a concern. There are no sources for social activists to get grants and funding from the government. Tyagi spoke of one of his personal experiences during his research for the film:

In one of my interactions with an American activist, Jeremy, was working in Nagpur (India) with HIV-positive orphans. He mentioned, how society shunned these children and even said he was “breeding viruses.” One of the children with him was physically abused, which forced him to move the child to the outskirts of Nagpur. Even when he wanted to enroll these children in schools to allow them to educate themselves for a better life, the school refused to admit these children on the pretext of their HIV-positive status. He secures funding from American organizations to provide health services to these children since the Indian government gives outdated medicines which are far less effective.

A closer examination of the adoption policies in India reveals the interplay of the two social problems. The Central Adoption Resource Authority (CARA) is the agency responsible for overlooking adoptions in India. CARA is a statutory body of the Ministry of Women and Child Development that regulates the adoption of children by foreigners and Indian residents through inter-country and in-country adoption and regulations, respectfully. The Central Government noted that the adoption regulations, as framed by the Central Adoption Resource Authority, explicitly prevent same-sex couples, Indian or foreign, from adopting children in India.  Tyagi’s perspective on CARA is unique from the lens of gender identity and parenting:

There is no relation between being a good parent and having a different sexuality. What ensures being a good parent? How does CARA decide that same-sex couples are not worth being parents? The preconceived notion in an Indian mindset is holding back the rights of several LGBT couples and holding back the opportunity of so many orphans to have a life with love and resources. A set of interviews with same-sex couples in India and abroad have revealed that they have resources to raise a child, they want to provide an opportunity to these children. But the CARA is holding them back. There are several methods by which illegal adoptions can take place. But, members of civil society do not want to resort to such methods.

Tyagi’s research, viewed with the social conditions of several orphans in India, indicates that there are same-sex couples who wish to share their homes with orphans and are unable to do so on account of restrictions formed through a series of stereotypes about LGBT+ couples. Adoption costs are very expensive in jurisdictions such as the United States, which caused several non-Indian couples to look into jurisdictions such as India. The Surrogacy (Regulation) Bill 2019 also restricts same-sex couples and single-parents from the process of surrogacy. The law concerning adoption has shown that same-sex couples are still not equal in the eyes of laws.

Tyagi claims that representation of LGBT+ personalities is a major issue in Indian media:

Historically speaking, Indian media and cinema have portrayed LGBT characters in an effeminate light. This has created an image which is misrepresented and stereotypical in nature. For someone who has never met LGBT individuals, the films are a pathway. Subsequently, this attitude is replicated in policies such as the guidelines from CARA. It is important to bring films which talk about LGBT people in a broader sense and represent them accurately.

While the representation on-screen influences real life, the legal guidelines must promote a culture of not only recognizing the community, but also understanding the discriminations they have been subjected to. In the case of National Legal Services Authority vs. Union of India, it was concluded that, “[d]iscrimination on the basis of sexual orientation or gender identity includes any discrimination, exclusion, restriction or preference, which has the effect of transposing equality by the law or the equal protection of the law guaranteed under our Constitution.” However, the law is not in spirit with the same. According to Tyagi, we must educate our kith and kin in order to attain true acceptability: “As a filmmaker, I will say it is up to us as civil society members to tell stories which no one knows about, or no one is ready to talk about. Hate only deters progress. Let’s learn to be accepting rather than expecting.

Vishwajeet Deshmukh is a 4th year law student at Government Law College, Mumbai, India and a JURIST Assistant Commentary Editor. 

Suggested citation: Vishwajeet Deshmukh, A Conversation with Tushar Tyagi on LGBT+ Issues in India, JURIST – Student Commentary, October 23, 2020, https://www.jurist.org/commentary/2020/10/vishwajeet-deshmukh-conversation-with-tushar-tyagi/.

This article was prepared for publication by Timmy Miller, a JURIST staff editor. Please direct any questions or comments to them at commentary@jurist.org