On 6th September 2018, a five-judge constitution bench of the Supreme Court, headed by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra, decriminalised homosexuality by partially striking down the 150-year-old archaic provisions of Section 377 of the Indian Penal Code (IPC). In its unanimous verdict on a batch of petitions the bench said, “Only Constitutional morality and not social morality can be allowed to permeate rule of law. Sexual orientation is one of the many natural phenomena. Any discrimination on the basis of sexual orientation amounts to violation of fundamental rights.”
What the verdict means
As a result of the Supreme Court ruling, consensual same-sex acts between homosexuals, heterosexuals, lesbians and other sexual minorities will no more be considered as criminal offence under the Indian law.
While the Supreme Court has delivered a landmark judgement by any measure, the journey is far from over.
Even though the Supreme Court ruling emphasizes on ensuring equal rights, it is just the first stepping stone towards the larger objective and there are challenges aplenty that remain. These challenges are due to absence of laws that take into account the needs of the LGBT members of the society. It is only logical that same gender marriage, inheritance, surrogacy, adoption, and other civil rights are some of such larger issues that will require legislation for ensuring apropos redressal of various problems continuously faced by the LGBT community.
What does the future hold and the Issue of Succession
LGBT community feels that it might take several years to resolve these issues through legal recourse and in this scenario, they are left facing challenges that need alternative solutions until suitable legislations come into place and laws are either amended or created to give them equal rights.
One of several challenges, but perhaps least spoken about despite its vitality, is that of inheritance or succession in case of same gender partners. Since law in India does not recognize same gender marriages, in case of one of the partners’ death intestate i.e. without any written succession plan (like a Will) being in place, succession to the deceased’s assets would be according to the personal laws applicable to him/her and in absence of appropriate written instructions, the other partner will not be entitled to receive any part in the inheritance as per laws currently prevalent.
Therefore, if one wants to ensure surviving partner’s financial security by way of bequeathing of estate to one’s same gender partner, there are few points they should consider:
1. Careful planning is essential: The only alternative for securing a smooth succession is to plan it well. The extent, time and mode of making one’s estate available free of hurdles for the intended cause are all crucial deliberations while setting up a succession plan.
2. Time is of essence: While this adage is true for everyone, it is most relevant in a case where lack of action is going to result in one’s assets going to unintended beneficiaries. Additionally, certain planning elements and tools could be far more effective if they are implemented in one’s lifetime, rather than posthumously.
3. Choose succession tools wisely: It is pertinent that under personal laws as well as under the Income Tax Act, the definition of “relative” does not include a partner of the same gender. Thus, a succession plan involving a “non-relative” requires careful consideration as executing options like substantial lifetime gift would be inefficient due to its tax and stamp duty impact. On the other hand, tools like trust structures, especially if set up during one’s lifetime, could be made into a robust arrangement to ensure that control is retained during one’s lifetime besides providing transition along with governance in a post lifetime scenario.
These are important factors, but the essence of succession planning lies in utilizing various tools in synchronisation in the best possible way for any given situation. Hence, succession in each such case requires a lot of thought and prudent comparisons especially when the required laws are not (yet) in place.