This order was passed by a division bench of justices G R Swaminathan and V Lakshminarayanan on a habeas corpus petition (HCP) filed by the woman’s partner, hailing from Tirupattur district, praying for an order to liberate the woman from being illegally detained by her parents at Gudiyatham in Vellore district.

The bench also pulled up the police for failing to respond to the urgent messages sent by the petitioner and forcing the woman to go with her parents. Further, the bench slammed police attached to Gudiyatham in Vellore district, Reddiyarpalayam in Puducherry and Jeevan Beema Nagar in Karnataka for failing to respond to the SOS messages sent by the petitioner and forcing the woman to go with her parents. Going further and expressing disappointment that no action was taken by the Inspector of Police in Gudiyatham, the DSP and Vellore SP despite a complaint being lodged, the bench said only after the HCP was filed, the police woke up.

We hold that the government officials, in particular the jurisdictional police, have a duty to respond whenever complaints of this nature are received, the bench noted.

The Order also observed that the Supreme Court’s order in the Supriyo @ Supriya Chakraborty v/s Union of India case may not have legalised marriage between same sex couples but they can very well form a family.

Mother of lesbian detenue is no Leila Seth, says Madras HC

“We have come to the conclusion that the detenue is entitled to go with the petitioner (female partner) and that she cannot be detained against her will by her family members,” the bench said.

It restrained the woman’s natal family members from “interfering with her personal liberty”. It also issued a “writ of continuing mandamus” to the jurisdictional police to provide adequate protection to the woman and her partner as and when required.

“Marriage is not the sole mode to found a family. The concept of a ‘chosen family’ is now well-settled and acknowledged in LGBTQIA+ jurisprudence,” the bench stated. It explained, citing the NALSA and Navtej Johar cases, that the SC has declared that sexual orientation falls within the realm of personal liberty guaranteed under Article 21 of the Constitution of India.

Dealing with the statement of the lesbian woman’s mother that the petitioner had led her daughter “astray” and turned her into a “drug-addict,” the bench said it could see that the detenue is a perfectly normal-looking young woman.

The bench pointed out that the petitioner has not mentioned anywhere about the true nature of their relationship but called herself as a close friend. “We can understand the hesitation on her part. Our society is still conservative, notwithstanding (the judgment in) NALSA and Navtej Singh Johar,” it said,

The bench recalled the heart-rending letter written by Leila Seth when the Delhi HC decision to decriminalise the same-sex relationship in the Naz Foundation case was reversed by the Supreme Court. Unfortunately, she was not alive to see homosexuality be decriminalised via the historic judgment in Navtej Singh Johar Vs Union of India case, it said.

“The mother of the detenue is no Leila Seth. We could understand her feelings and temperament,” the bench said in the order. Stating that it had endeavoured in vain to impress upon her that her daughter is entitled to choose a life of her own since she is an adult, the bench noted that the law is clear and the precedents are clearer on the issue.

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The post Same sex marriage not legalised, but couples can form a family: Madras HC appeared first on SabrangIndia.

This article is a part of a series that will explain and analyse the judgement with respect to different ways in which the judges reached their conclusions, the jurisprudence they created and sidelined, and the consequences of this judgement. The following were the issues decided by the court:

1)      Whether the Right to Marry is a Fundamental Right or not.

2)      Whether there is a Fundamental right to enter a Civil Union or not.

3)      Whether the SMA is unconstitutional for excluding non-heterosexual persons from its scope or not.

4)      Whether non-heterosexual marriage can be read within the framework of SMA or not.

5)      Whether Transgender Persons have a right to marry under the SMA or not.

6)      Whether the adoption Regulations that restrict unmarried non-heterosexual couples in adopting children are valid or not.

The relevant provisions for each issue of the respective act/regulations will be discussed in the respective part for the sake of ease. For now, this part will examine the issue of whether Right to Marry is a Fundamental Right or not, according to the judgement.

This was an issue on which the five judges were unanimous in their decision — that there is no fundamental right to marry.

In a three- judge bench judgement by the Supreme Court in the case of Shafin Jahan vs. Asokan K.M, it was held that individual has a right to marry a person of one’s own choice as well as the right to choose a religion.[2]  In another 3-Judge bench judgement by the Supreme Court in the case of Shakti Vahini vs. Union of India, the judgement observed that the ability of an individual to make choices is an inextricable part of dignity and when two adults choose to marry out of their own volition, they have a right to do so.[3]

Relying on these two judgements, the petitioners claimed that like all persons have a right to marry, Queer people too have a right to marry (Queer is being used as an umbrella term for all non-cisgendered & non-heterosexual people in this series).

CJI D.Y. Chandrachud arrived at his pronouncement in a way different to that of other judges. He states that Entry 5 of the Concurrent list (List III) of the Seventh Schedule of the Constitution grants powers to the state to regulate Marriage, Divorce, Adoptions, Succession etc and this, is the reason why the State can regulate the institution of Marriage. If there is a Fundamental Right to marry, he states, then the state would be obligated to create the institution even without Entry 5 and such argument cannot be accepted.[4]

To put it in rather simple words, his opinion says that marriage was a mere social institution but with state’s regulation via different acts such as Hindu Marriage Act, SMA etc, marriage has attained more significance. However, its significance is not entrenched in the Constitution. He stated that with issues like privacy and right to education in the cases of Justice KS Puttaswamy vs. Union of India[(2019) 1 SCC 1] and Unnikrishnan vs. State of Andhra Pradesh [1993 SCC (1) 645] respectively, their significance could be traced back to Constitutional Values and consequently Article 21- therefore they were declared as fundamental rights. Marriage is unlike privacy and education, meaning that the Constitution does not recognise a fundamental right to marry. He stated that the recognition for and meaning of the institution of marriage which the petitioners want for themselves is not accorded by the constitution but by a statute.[5]

Justice Ravindra Bhat, writing for himself and on behalf of Justice Hima Kohli, took a different approach to arrive at the pronouncement that there is no right to marry.

He traced back marriage to a period when state was not in existence and therefore, declared that the source of marriage is external to the state, and the source defines the boundaries of marriage. He states as follows:[6]

“This implies that the marriage structure exists, regardless of the state, which the latter can utilise or accommodate, but cannot be abolished as a concept. Under this view terms of marriage are set, to a large extent, independently of the state. Its source is external to the state. That source defines the boundaries of marriage. This implies that state power to regulate marriage does not sit easy with the idea of marriage as a fundamental right.”

He stated that there are two competing claims with respect to the nature of marriage- one says that the state should exercise more control, and another says that it should exercise minimal control. He consequently stated that even if there was indeed a right to marry, it cannot be operationalised unless it is elevated to the status of Article 17 (Prohibition of Untouchability), Article 23 (Prohibition of Traffic in Human beings), Article 24(Prohibition of employment of Children in factories etc). Therefore, the court cannot compel the creation of a social institution, he stated, by recognising a fundamental right to marry. [7]

To put in simple words, the State cannot grant a fundamental right that would have the effect of creating an institution that it had no hand in creating or will have no hand in abolishing.

Finally, Justice P.S. Narasimha had a slightly different or perhaps an additional way to Justice Bhat’s way to arrive at his pronouncement that there is no fundamental right to marry. First, he stated that legislations on marriage have accommodated customary and religious practices, and this synchronously occupied institutional space of marriage is a product of our social and constitutional realities, and therefore, right to choose a spouse and the right of a consenting couple to be recognised within the institution of marriage is restricted. The space granted to customary practices is also conditions by the right to religion and right to culture, sanctified in Articles 25 & 29 of the Constitution, he stated.[8]

Contradictions in the Verdict of Five Judges

The ways judges have arrived at the denial of the fundamental right to marry are not only peculiarly one of a kind, but they also contradict each other.

The CJI’s opinion on one hand says marriage’s significance is attributable to the state’s legislation rather than Constitutional Principles, therefore, there is no right to marry. Justice Bhat’s opinion on the other hand states that marriage’s significance exists outside of the state and therefore, the State cannot be tasked to effectuate a right to marry, by the court.

The question that arises when one looks at both ways is whether it is a requirement for an institution to be disconnected/connected to the State’s efforts, for it to be declared as a fundamental right.

In Virender Gaur vs. State of Haryana [(1995) 2 SCC 577], the Supreme Court stated that protection and preservation of the environment, ecological balance free from pollution as part of Article 21. It stated as follows: Article 21 protects the right to life as a fundamental right. Enjoyment of life and its attainment including their right to life with human dignity encompasses within its ambit, the protection and preservation of environment, ecological balance free from pollution of air and water, sanitation without which life cannot be enjoyed. Any contraacts or actions would cause environmental pollution. Environmental ecological, air, water, pollution, etc. should be regarded as amounting to violation of Article 21.

In Francis Coralie Mullin vs The Administrator[1981 SCC (1) 608], the Supreme Court held that the right to life includes “the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings.” Although the court conditioned these rights on the economic capabilities of the State, the court did not even require the necessity of tracing of constitutional values for recognising these rights.

By the time the court had delivered the judgement in the case of Virender Gaur, there were multiple acts governing the mere social understanding to have sanitary spaces by way of the Air (Prevention and Control of Pollution) Act, 1980, Environment Protection Act, 1986 etc. Despite the extensive state legislation granting importance to concepts such as sanitation and environmental degradation, the court did not restrain itself from tracing the rights to sanitation to Directive Principles of State Policy- Article 48A (Protection and Improvement of Environment and Safeguarding of Forests and Wild Life) and Article 47(Duty of State to raise the level of nutrition and standard of living and to improve public health). One could argue that there is no directive principle or any other Constitutional provision that the right to marriage could be traced back to. However, Article 38- casts a duty on the state to secure a social order for the promotion of welfare of people. Article 38(1) states — “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.”

If the state is duty bound to protect a social order in which social justice informs all institutions of national life, the right to marry a person, for a non-heterosexual person forms part of the social justice principle since the same right is accorded to cisgendered-heterosexual people. Given the unanimous agreement by the whole bench about the discrimination faced by the queer people across the country even today, this interpretation would have given effect to the constitutional values to deliver social justice to people. CJI does mention Article 38 as he goes on to discuss the right to enter a civil union, but his opinion does not provide any cogent reasoning as to why the same tracing cannot be done between fundamental right to marry and Directive Principles as under Article 38. Justice Kaul, in his concurring opinion with the CJI mentions Article 38 when he bats for an anti-discrimination law but nothing more on that is stated. Justice Kaul states that the anti-discrimination legislation would “also be in furtherance of the positive duty of the State to secure social order and to promote justice and social welfare under Article 38 of the Constitution.”

Coming to Justice Bhat’s opinion, he has held that since marriage is an institution which is independent of the state with respect to its boundaries and source, the Court cannot give a fundamental right to marry which would necessitate the State to take up the obligation to create an institution of marriage for Queer people. Additionally, Justice Bhat also spends efforts in differentiating between the Marriage system in the United States where only a licenced marriage by the United States’ government is a recognised marriage and marriage system in India where there is no need to do so. However, there is no reasoning provided in Justice Bhat’s opinion regarding how the minimum criterion in different marriage acts for a marriage in India to be valid cannot be equated to the licence regime in the United States. There is only a broad proposition, in Justice Bhat’s opinion, that marriage exists independently of the state in India unlike in the United States but no further examination of such a proposition, which if done, would reveal that a similar system also exists in India and gets triggered when the couple wants the State to be involved in matters such as dispute resolution etc. This is highlighted by the CJI himself in this judgement itself in a section under which he responds to Justice Bhat’s observations on various disagreements. Such further examination would also reveal that the competing claims that he has noted with respect to wanting or not wanting state influence in marriage also would fall since in that paradigm, both the petitioners and the ones claiming that marriage should be between biological man and woman will approach the state.

Justice P.S. Narasimha’s opinion, while agreeing with Justice Bhat’s opinion-thus having the same contradictions- also had additional reasons as to why there is no fundamental right to marry. He says that the existence of customary accommodations aided by constitutional articles such as Articles 25 & 29 of the Constitution mandates the right to marry and the facets of it are restricted. This is a reasoned observation since there are competing rights over an institutional space of marriage coupled with state interest, there are restrictions on the right to marry. These restrictions are already materialised in the forms of prohibited degrees of relationships, age of parties to marriage etc. He however goes on to equate claiming for a right to marry to a claim to create a legal and socially enforceable status.

However, for example, the grant of Right to Privacy as a fundamental right in Justice K.S. Puttaswamy’s case did not materialise into a claim for a legal regime for privacy. Although it could be differentiated from the current Supriyo Chakraborty case by saying that the petitioners in the latter case did ask for a substantive reading in of provisions of SMA- it is important to note that the Judicial Creativity that was used in devising ways to arrive at the pronouncement to deny the right to marry, would surely have been successful in arriving at conclusions which would have granted right to marry without causing judicial overreach, to non-heterosexual couples, who face much discrimination, as agreed by the Court.

Conclusion

While the right to marry was only one of the many reliefs prayed for by petitioners, the reasoning employed to deny it has created a jurisprudence that is not only tricky and difficult to navigate but also goes contrary to the established jurisprudence over positive obligations of the state, especially due to the fact that the positive obligation to remedy a social institution in which the state has had less interference in is under scrutiny, due to the majority’s opinion.

In the next part of this series, the right to enter a Civil Union and the disagreements between CJI and Justice Bhat will be discussed.

(The author is an intern with the organisation)

[1] 2023 INSC 920

[2] (2018) 16 SCC 368

[3] (2018) 7 SCC 192

[4] Para 182, Page 138, Supriyo Chakraborty vs. Union of India, https://main.sci.gov.in/supremecourt/2022/36593/36593_2022_1_1501_47792_Judgement_17-Oct-2023.pdf

[5] Para 184, Page 140, Supriyo Chakraborty vs. Union of India.

[6] Para 45, Page 290, Supriyo Chakraborty vs. Union of India.

[7] Para 47, Page 291, Supriyo Chakraborty vs. Union of India.

[8] Para 12, Page 362

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The post Right to Marry is not a fundamental right – India’s Supreme Court in the Marriage Equality Case appeared first on SabrangIndia.

The bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, had reserved the judgment in the said case on May 11, 2023. The verdict pronouncement lasted for almost two hours and was delivered through four judgments that had “a degree of agreement and a degree of disagreement,” as per CJI Chandrachud. While three of the judges, forming the majority, agreed that the court cannot form an obligation on the state to create a legal status for queer couples, the minority judgments of CJI Chandrachud and Justice Kaul had deemed it necessary to recognise civil unions of queer couples.

 The judgments:

1. CJI Chandrachud

CJI Chandrachud, who is known for his liberal views on and knowledge of gender, dedicated one section of his judgement to the issue of queerness not being an urban or an elitist concept that is restricted to the upper classes of the society. As stated by him, “Queerness can be regardless of one’s caste or class or socio-economic status.” It is essential to highlight here that the aforementioned remark was a response to the argument raised by the Union of India that the issue of same-sex marriage is an issue of the urban elite.

In his judgement, the CJI dealt with the issue of judicial review and separation of powers. CJI Chandrachud highlighted that one of the major arguments put forth by the Union of India was that the court was violating the doctrine of separation of power by entering this arena and that it should be left to the Parliament to legislate on the issue of same sex marriage. CJI Chandrachud then stated that the institution of marriage has been static and changing, with the move from the practice of Sati to allowing remarriage to prohibition of child marriage, and these reforms have been brought in through act of the legislature. And thus, he held that the intimate activities within the private spaces that individuals occupy cannot be deemed to be out of State’s scrutiny.

CJI Chandrachud also left it to Parliament to decide whether there should be a change in the Section 4 of the Special Marriage Act which the petitioners had alleged to be discriminatory towards and exclusive of same-sex couples. As per Livelaw, CJI stated that “The court is not equipped to undertake such an exercise of reading meaning into the statute. Whether a change in the regime of the Special Marriage Act (SMA) is for the Parliament to decide.”

On the issue of adoption laws being exclusionary towards queer couples, CJI held that the respondents had failed to provide the necessary evidence to show that only married heterosexual couples can make for good parents. With regards to this, CJI Chandrachud held that the Central Adoption Resource Authority Regulation 5(3), which bar unmarried couples from adopting, to be read down as it indirectly discriminated against atypical unions. Notably, as per the laws in place, a queer person can adopt only in an individual capacity. The CJI held the said regulation to have an effect of reinforcing the discrimination against queer community, and stated that “The CARA circular (which excludes queer couples from adoption) is violative of Article 15 of the Constitution.”

Through his judgement, CJI Chandrachud re-iterated the fundamental rights that the Constitution of India that include the right to enter into a union and the right to recognition of that union under Article 19 as well as right to choose one’s partner under Article 21. Through this, CJI Chandrachud held that the fundamental rights of queer couples that already exist cannot be denied and doing so will amount to discrimination.

In conclusion, CJI Chandrachud, however, did not grant any concrete steps to extend the marital rights to the queer community, creating a separate space for them or making any changes to the SMA. Instead, he held that queer unions, along with the material benefits flowing from the same, should be recognised under the existing fundamental rights. He also added that if queer associations are not recognised under Part 3 of the Constitution, it could thwart freedoms and will be discriminatory in nature.

Without providing any set deadline, CJI DY Chandrachud left it to the Union Government that had vehemently opposed the Supreme Court on considering the issue of equitable marital rights to form a committee to decide the rights and entitlements of persons in queer unions. The committee, he said, shall consider including queer couples as family in ration cards, enabling queer couples to name each other as nominees in bank accounts, etc.

 Justice S.K. Kaul

Justice Kaul’s judgment was in agreement with the judgment of CJI Chandrachud. In his judgment, Justice Kaul held that constitutional courts have to uphold the rights of individuals through the guidance of constitutional morality and not social morality. And thus, according to him, it was essential that queer unions are recognised as a union of partnership and love. He further added that the path to marriage equality is through legal recognition of non-heterosexual unions.

While pronouncing his judgement, Justice Kaul had stated that “Non-heterosexual unions and heterosexual unions must be seen as both sides of the same coin. This moment is an opportunity to remedy the historical injustice and discrimination and thus governance needed to grant rights to such unions or marriages.”

Justice Kaul too, however, much like CJI Chandrachud, held back from issuing any concrete directions to extend the rights of marriage under the SMA to queer couples. Even after holding the SMA to be violative of Article 14, he left it up to the parliament to read down or change the exclusionary provisions of the said Act keeping in mind the “cascading effect” that it can have.

 Justices Ravindra Bhat and Hima Kohli

The judgement pronounced by Justice Bhat had been signed by him and Justice Kohli. Through the judgement, Justice Bhat had disagreed with the judgment of CJI Chandrachud on certain aspects. He had stated “We do not particularly subscribe to the views of CJI on democratising intimate spaces.”

According to Justice Bhat, reforms to the institution of marriage can only be brought through the legislative acts introduced by the state and the interference by the Courts have been limited to protecting the queer individuals from facing violence. 

In his judgement, Justice Bhat held it wrong to obligate the state to create a legal status for queer couples by holding the institution of marriage to be separate from the state. Justice Bhat held, “This court has recognised that marriage is a social institution. Marriage as an institution precedes the state. This implies that marriage structure exists regardless of the state. Terms of marriage are independent of the state, and its sources are external.”

Based on the aforementioned rationale, of marriage being a social institution, Justice Bhat stated that while the right to relationship, choice and intimacy fall under the ambit of Article 21, the court cannot obligate changes to a social institution. He further stated that the right of two consenting adults can only be extended to the right to dignity, to live together, be intimate, and be protected from violence. “There are difficulties in creating through a judicial diktat a right to civil union,” Justice Bhat had said.

In conclusion, Justice Bhat held that in addition to the court not being able to create a legislation for recognition of queer couples, the court also refused to obligate the state to recognise queer unions and the bouquet of rights flowing from it.

With regards to the SMA, Justice Bhat stated that the said Act cannot be read in a gender-neutral manner and had been passed solely with the purpose of allowing inter-faith and inter-caste heterosexual relationships. Notably, both CJI Chandrachud and Justice Kaul had disagreed with this contention.

In addition to this, Justice Bhat also disagreed with CJI Chandrachud on granting the right of adoption to queer couples. As per Justice Bhat, the said right of adoption could only be enacted through law. In this regard, he said, “the state as ‘parens patriae’ has to explore all areas and to ensure all benefits reach the children at large in need of stable homes”.

4. Justice P.S Narsimha

Through his judgment, Justice Narsimha agreed with the judgement of Justice Bhat and Justice Kohli. According to him, the constitutional challenged raised by the petitioners against the SMA and the Foreign Marriage Act fails based upon the reasons provided by Justice Bhat in his judgment. He too concluded the judgment by stating that the extension of marriage rights to queer couples is an activity that needs a deliberate exercise which can only be conducted by the legislature.

 Where does this leave us?

With this, the constitutional bench of the Supreme Court unanimously held that no legal recognition will be granted to queer marriages. With a ratio of 3:2, no constitutional or fundamental right of civil unions of queer couples could be granted by the court. Additionally, the majority three judgments also withheld the extension of right to adoption to queer couples. Lastly, the constitutional bench unanimously stated that the issue of recognition of marital rights of queer couples will be examined by the High-Powered committee, to be set by the Union of India.

 One step forward, 5 steps back:

Today, the queer community stands at the same juncture that it stood five years ago when the Supreme Court had unanimously read down Section 377 of the Indian Penal Code that had criminalised consensual sex between homosexuals. On that fateful day of 2018, Justice Indu Malhotra had written in her judgement that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries.”

The four separate judgements pronounced by five judges of India’s Supreme Court today clearly signal disappointment for the queer community. The court not only refused to recognise queer marriages, they did not grant any recognition to civil unions or any incidental rights of queer couples. Through this judgement, by opting for judicial restraint instead of judicial activism, has the Court missed an opportunity to alleviate discrimination that the queer community faces? Arguably, instead of building upon its own precedents in the case of Navtej Singh Johar v. Union of India (2018), today’s verdict has further delayed the accrual of all rights to the queer community holds in India. 

The cautious approach adopted by the judiciary has once again prolonged the struggle of the queer community for basic and equal rights.

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In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage

Unravelling India’s Legal Evolution: LGBTQIA+ Rights and the Supreme Court Handbook

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The South Asian lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQIA+) population has looked to the Himalayan nation as a beacon of hope for their rights. In 2007, Nepal became the first nation in South Asia to formally recognize the third gender. Since then, the rights of gender and sexual minorities have gradually been realised and improved.

In a historic step, Nepal has become the first nation in South Asia to legalise same-sex unions, joining the tiny but increasing group of countries in the Asia-Pacific that have acknowledged this basic human right. The Supreme Court of Nepal issued a historic interim judgement on Friday ordering the Nepali government to formally recognise same-sex marriage, marking a significant step towards inclusivity and equality. This order by Justice Til Prasad Shrestha emphasises the necessity of significant changes to the current National Civil (Code) Act of 2017 (2074) provisions. According to the Family Law, marriage is defined as a relationship between “a man and a woman accepting each other as the husband and wife”. Adhip Pokharel, a Nepali national, and Tobias Volz, a German national, petitioned for this historic change. When Volz applied for a non-tourist visa to live in Nepal as Adhip Pokharel’s spouse in 2022, the couple—who had wed in Germany back in 2018—met with substantial challenges. The application was turned down by the authorities, who cited Nepal’s lack of legislative protections for same-sex unions as their justification. The pair was determined to stop this discriminatory practise, so they brought their case to the Supreme Court, which ultimately resulted in the issuing of an order granting the German citizen a non-tourist visa.

The legal journey to Same-sex marriages in Nepal

The lengthy and complex process that Nepal’s courts went through to recognise and legalise same-sex marriage is examined in this essay, along with the possible implications for an upcoming Indian Supreme Court decision.

On June 28 2023, the Supreme Court of Nepal made a historic decision that opened the door for marriage equality in the nation, making Nepal the first South Asian to legalize same-sex marriages and the fourth in the Asia-Pacific to do so. Justice Til Prasad Shrestha ordered the government to immediately begin registering same-sex marriages while working on legislation to modify the current law, despite the civil code currently defining marriage as being between a man and a woman

The Supreme Court of Nepal’s interim judgement calls for the creation of a “transitional mechanism” for the registering of weddings for the nation’s gender and sexual minorities. In addition, the directive instructs the PMCMN and the office of the Prime Minister to establish a “separate register of marriages” specifically for heterosexual and homosexual couples.

The interim order is based on Article 18(1) (right to equality) of Nepal’s 2015 Constitution and Section 69(1) (freedom of marriage) of The National Civil (Code) Act of 2017 which promote the recognition of marriage rights for people based on their gender identification and sexual orientation. It requests that the regulations pertaining to marriage and the registration of

Although there have been occasions when implementation has lagged, Nepal’s Supreme Court has won praise for its decisions in favour of LGBTQIA+ rights.

LGBTQIA+ individuals in Nepal have historically experienced significant discrimination and stigma. From their families, neighbourhoods, and places of employment, they frequently experienced hatred, rejection, and isolation. LGBTQIA+ people experienced verbal, physical, and emotional abuse, which had a serious negative impact on their mental and emotional health.

An important LGBTQIA+ rights group called the Blue Diamond Society (BDS) was established in Nepal in 2001. It was essential in spreading knowledge about LGBTQIA+ issues, offering support services, promoting legislative changes, and questioning social conventions. To provide a safe environment for LGBTQIA+ people, BDS ran community centres, outreach programmes, and pride marches.

Protests and demonstrations were organised by LGBTQIA+ activists in Nepal to demand their rights and oppose the country’s discriminatory laws and social mores. Although these activists encountered a lot of opposition and backlash, their work was crucial in spreading knowledge and rallying support for LGBTQIA+ rights.

The LGBTQIA+ population in Nepal was disproportionately impacted by the HIV/AIDS epidemic. Many LGBTQIA+ individuals were hesitant to seek healthcare treatments and support because of social stigma and discrimination. In order to address the confluence of LGBTQIA+ rights and public health, organisations like the Blue Diamond Society campaigned to give HIV/AIDS preventive information, testing, and support to LGBTQIA+ people.

Sunil Babu Pant Case- Catalyst for Change

A crucial court case, for LGBTQIA+ rights in Nepal was Sunil Babu Pant v. Government of Nepal[1]. The case was brought in 2007 by LGBTQIA+ activist and Blue Diamond Society founder Sunil Babu Pant, who questioned the validity of Nepal’s laws that make same-sex partnerships illegal.

The legal code of Nepal at the time, Section 377, used to criminalise “unnatural sexual intercourse” and target coerced same-sex partnerships. According to Sunil Babu Pant, this clause went against the Interim Constitution of Nepal’s guarantees of equality, non-discrimination, and privacy.

The Sunil Babu Pant v. Government of Nepal case was a significant advance for LGBTQIA+ rights. The LGBTQIA+ community was represented by the petitioners, who argued against Nepal’s discrimination against them and failure to recognise their preferred genders. The issuance of birth certificates, citizenship certificates, passports, voter identity cards that recognised their preferred genders, and the decriminalisation of consenting same-sex sexual activity were among the legal recognition and protections they sought.

The court ruled that under the different articles of the Constitution and the international agreements that Nepal has ratified, LGBTQIA+ people are entitled to equal protection and rights.  According to the court, a person’s gender identity and sexual orientation are protected by their right to privacy and cannot be accessed without their consent. LGBTQIA+ people’s privacy was violated by treating their sexual behaviour as unnatural.  A committee was established by the court with the mission of researching and defending the rights of minority groups, including the LGBTQIA+ community. The committee was tasked with advising the state on the adoption of suitable legal legislation to safeguard LGBTQIA+ rights.  The court ordered the state to implement appropriate legal provisions to protect the rights in accordance with the committee’s recommendations. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

The Sunil Babu Pant case established crucial precedents for LGBTQIA+ rights in Nepal by reaffirming their legal equality, right to privacy, and dignity. Additionally, it emphasised the state’s responsibility to end prejudice and led to the formation of a committee to direct legislative improvements. These conclusions were important advancements in Nepal’s legal protection and acknowledgment of LGBTQIA+ rights. This verdict suggested the need for extensive legal changes to eliminate discrimination and give LGBTQIA+ people legal protection.

Early in 2015, a report from a government-appointed commission was released, effectively endorsing the legalisation of same-sex unions. However, neither had the same impact as the Supreme Court’s ruling establishing a third gender category. The third option was added to voter records by the Election Commission in 2010, and immigration papers quickly followed suit. Nepal was the first nation in the world to include a third gender in its federal census in 2011. The government also began issuing passports in 2015 that recognised three genders. In the same year, Nepal’s constitution was amended to specifically protect LGBT persons, making it the tenth nation in the world to do so.

Nepal’s progressive Constitution

On September 16, 2015, Nepal’s Constituent Assembly approved a ground-breaking new constitution following a protracted process of review and discussion. Having lost its monarchy in 2008, this was Nepal’s first constitution as a federal republic. Notably, the new constitution of Nepal is the first in Asia to specifically recognise the human rights of LGBTQ individuals.

Numerous sections of the constitution guarantee safeguards and rights for LGBT people. Article 12 gives people the freedom to indicate either their preferred gender identity—male, female, or other—on their citizenship documentation. The state and the judiciary are expressly forbidden from discriminating against gender and sexual minorities when enforcing the law under Article 18. Additionally, it enables the government to create specific legal provisions that develop, protect, and defend the rights of sexual and gender minorities as well as other oppressed and marginalised groups.

In order to encourage inclusiveness and representation, Article 42 also acknowledges gender and sexual minorities as a group with the right to participate in governmental processes and public services.

The Supreme Court of Nepal’s ground-breaking decision from December 2007 helped pave the way for this momentous development in Nepal’s constitution. The court’s ruling prepared the way for the inclusion of gender and sexual minorities’ rights in the nation’s constitution by laying the foundation for their recognition and protection.

Nepal’s constitution demonstrates a progressive position by specifically recognising the human rights of LGBT people and marks a significant turning point in the country’s advancement of equality and non-discrimination.

The court in the Sunil Babu Pant judgement also observed that the right to marriage is an “inherent right” of an adult based on free consent and will. However, it appears that the government’s legislative ineptitude in carrying out these court orders continues. In fact, there are some instances where the government has shown a reluctance to recognise the equal rights of the gender and sexual minorities, such as when it maintains a strictly gender-binary definition of marriage under Sections 67 (marriage deemed to be concluded) and 68 (marriage to be inviolable social bound).

The Supreme Court of Nepal has recently made decisions based on the principle of Stare decisis, citing other decisions it has made regarding LGBTQIA+ rights. The court strengthened the legal recognition of same-sex marriages and established a progressive trajectory in defending the rights of sexual minorities by being consistent and expanding on prior precedents.

Impact on Neighbouring countries and Global precedents

The Penal Code (Amendment) Bill, 2023, which aims to repeal legislation criminalising intimate conduct between consenting adults, was recently dismissed by the Supreme Court of Sri Lanka. The court found that the proposed legislation would guarantee everyone equal protection under the law regardless of sexual orientation, strengthen fundamental rights, and enable people to live with dignity. Recognising the right to privacy and liberty, the court emphasised that it is not the function of the government to regulate adult-to-adult private consenting sexual interactions.

This advancement in Sri Lanka is consistent with the historic decision rendered on March 22 by the Supreme Court of Nepal. The Supreme Court of Nepal recognised the equality of marriage and ordered the Ministry of Law and Justice to draught an equal marriage law or change current legislation to reflect this. Since the court’s ruling in Sunil Babu Pant v. Government of Nepal in 2007, which recognised the third gender legally and upheld the right to marriage as an inherent right based on free consent and will, non-heterosexual weddings have been accepted in Nepal.

The region’s neighbouring nations are significantly impacted by Nepal’s progressive position on LGBTQIA+ rights. The Supreme Court of India, a neighbouring country, decriminalised homosexuality in 2018 and is currently taking requests for non-heterosexual couples to be treated equally in marriage. The ruling in Nepal establishes a precedent and motivates comparable debates and legal issues in India.

The legalisation of gay marriage in Nepal also demonstrates the nation’s leadership in furthering the rights of South Asian gender and sexual minorities. The steadfast dedication of Nepal’s Supreme Court to equality and the affirmation of fundamental rights serves as a model for other nations in the region.

Conclusion

The legal environment is changing, and it is more crucial than ever to recognise LGBTQIA+ people’s rights. The courts’ emphasis on respect, confidentiality, and equal legal protection is consistent with universally accepted human rights tenets. A rising understanding that consenting private conduct between adults should not be criminalised can be seen in Nepal’s ruling and Sri Lanka’s dismissal of challenges to the repeal of discriminatory laws.

In conclusion, tremendous progress has been made in recognising and defending the rights of gender and sexual minorities in South Asia as seen by Nepal’s ground-breaking decision on marriage equality and Sri Lanka’s rejection of objections to the repeal of discriminatory laws. These developments may influence legal debates and reforms in neighbouring nations, promoting a more welcoming and egalitarian society for all.

LGBTQIA+ activists and advocacy groups in India find inspiration and a role model in Nepal’s legalisation of same-sex unions. The courts would be encouraged to fight for the same rights and official acceptance of same-sex unions in India. Legal advances in one nation can have an impact on judicial rulings and legal debates in neighbouring nations. Nepal’s legalisation of same-sex unions may add to the increasing number of worldwide legal precedents and justifications for marital equality. These precedents could be mentioned in Indian courts while a petition for same-sex unions is under consideration. When same-sex marriage laws are successfully implemented in Nepal, politicians in India may consider making similar changes. The Indian government may come under pressure as a result to deal with LGBTQIA+ rights problems more aggressively and take steps to legalise same-sex weddings or increase the legal status of same-sex partnerships.

(This article has been researched by Hasi Jain, an intern with the organisation.)

same-sex unions[1] Sunil Babu Pant v. Nepal Government, Writ No. 914 of the year 2064 BS (2007 AD)

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The fact that Indians while preaching diversity and equality, often forget that people who have different sexual orientations, that is the people of the LGBTQ+ community also deserve the same rights as the heterosexual people of this country.

When section 377 was decriminalised[2], it was a watershed movement for the country, a hope for a better future where the privileges that the heterosexual community enjoys are equal and same as the rights that the LGBTQ+ community deserves.

However, there has been no further action taken to strengthen the rights of the community since 2018, even after the unabated discrimination faced by the community. Five years down the line and India still stands at the same position with respect to LGBTQ+ rights, even after recognizing them as a community that needs equality.

The United Nations’ Universal Declaration of Human Rights states,

“Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family[3].”

Then why is there an issue when it comes to same sex couples?

Adoption rights in India

In India, there are two main legislations that govern adoption, the Hindu Adoption and Maintenance Act, 1956[4] (herein after referred to as HAMA) and The Juvenile Justice (Care and Protection of Children) Act, 2000[5] (herein after referred to as JJ Act)

With accordance to HAMA,

Every man who is a Hindu (by faith, including Buddhist, Jain, or Sikh) who is of sound mind, not underage, and is qualified to adopt a son or a daughter. However, if such a man is still married at the time of the adoption, he can only do so with his wife’s permission (unless the court has pronounced her incapable of giving her consent).

Any female who is a Hindu (including Buddhist, Jain, or Sikh by religion) has the right to adopt a son or daughter if she is not married, or if she is married but her husband is deceased, their marriage has been dissolved, or her husband has been found to be legally incompetent by a court. This also limits the adoption rights of women, somewhat.

HAMA, while allowing single parents to adopt, but does not leave space for same sex adoption.

If a couple is adopting under HAMA act, they need to be-

1. Of different genders
2. Hindu’s
3. Of sound mind

Under the JJ Act,

• A couple or a single parent may adopt an orphan, an abandoned kid, or a child who has been handed over.
• The potential adoptive parents must be mentally stable, physically fit, and fully prepared to adopt the child and to raise the child well.
• For married couples, both spouses’ consent is necessary.
• Adopting a girl kid is not permitted for unmarried men.
• No couple may receive a child unless they have been married for at least two years in a healthy partnership.
• The age gap between the adoptive child and the parents shouldn’t be any smaller than 25 years.

Here, in order for a couple to adopt it is necessary for them to have a “healthy marriage” for a period of two years. However, since same-sex marriages are not legally recognized in India, therefore even under the JJ act it is not permissible for same sex couples to adopt a child.

The Guardians and Wards Act[6] too is dominated d by the idea of a heterosexual couple.

Since all the legislations that govern adoption and surrogacy see marriage as a prerequisite for adoption in the case of couples, it is impossible for a homosexual couple to adopt. Moreover, the legislations are not gender neutral. Building a family by marriage and having kids through adoption is a basic right that should be available to all humans and should not be categorized as a heterosexual privilege.

Despite recognising the LGBTQ+ community formally, India is still holding on to these discriminatory laws, and restricting the people from the community to have a family. This is not only a contravention of Article 14 and 15, but also of Article 19 of the Indian Constitution.

Jurists and LBGTQ+ Rights-

Lon Fuller, a legal philosopher and jurist, argued that law must conform to or with morality. He introduced a concept of “inner morality of law” which means that for a legal system to be legitimate and effective, it must conform to some essential moral principles. The laws must reflect and promote basic moral principles and values accepted by society, such as fairness, justice and human dignity.[7]

Laws are shaped by the society we are living in, but in the end laws need to serve their purpose, which is fairness and justice. Laws must conform with the basic moral standards, in order to be considered legitimate. Living in a society, where the laws are not just or fair for a particular group of people, makes the system itself, basically ineffective and illegitimate.

While living in a democracy, it is especially important to keep in mind that law is dynamic, law must conform with the basic moral standards, law is a measure of equality in society and that law is a tool that can be used to uplift all communities in the society that have faced discrimination in the past.

Ronald Dworkin[8], another legal philosopher and jurist, places emphasis on the ethical foundations of rights.  According to Dworkin, rights have a deeper moral foundation than simple legal or social structures. Dworkin contends that because they are moral beings, people have certain rights. The values of justice, fairness, and respect for human dignity serve as the foundation for these rights.

They represent the inherent worth and liberty of people while also providing them with defence against unwarranted intrusion or injury. According to Dworkin, people have inherent rights because of their moral standing rather than being awarded or bestowed by the government or society. They can neither be removed nor overruled by simple law nor the desires of the majority because they exist regardless of legal acknowledgment.

Dworkin’s idea of “rights as trumps” highlights how crucial individual rights are when it comes to determining legal decisions. Rights, in Dworkin’s view, have a distinctive position and act as trumps that take precedence over other factors like utilitarian or majority interests.

Dworkin’s viewpoint argues that the rights of anyone, including same-sex couples, should be recognised and protected when applying this idea to same-sex adoption.

Dworkin would probably contend that same-sex couples should be allowed to adopt in the context of same-sex adoption. He would argue that it is against their fundamental rights to equality and liberty to prevent same-sex couples from adopting merely based on their sexual orientation. Dworkin’s paradigm would give individual rights and the best interests of the child top priority when determining whether same-sex adoption is legal and permissible.

Countries that have legalised same-sex adoption-

Fifty-five countries, have legalized same sex adoption, 128 countries are in the process of doing so, 44 countries consider same sex adoption illegal[9].

In the celebrated judgement of the US supreme court, Obergefell v. Hodges[10], a case which has been repeated citied by the Indian Courts in various judgments, like Navtej Singh Johar v. the Union Of India[11], Arunkumar and Another Versus Inspector General of Registration[12], Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others[13] and Shayara Bano v. Union of India [14]

The case has not only been an important one, to reach the most groundbreaking decisions of India but has also been used as a precedent. This was the case that legalized same-sex marriages and same-sex adoption in the US.

However, so far, while using it a precedents on many aspects of universal rights law, where Indian courts have spoken about dignity, privacy, and right to marry whoever you want, Courts have not legalised same-sex adoption or marriage up yet.

Indian constitution and same-sex adoption

Everyone has the right to equal treatment under the law, as stated in Article 14. It allows for distinctions to be made between various groups of individuals, but it also demands that these distinctions be founded on observable differences and have a logical relationship to the objective being pursued. There is no discernible difference between people who indulge in “carnal intercourse outside the order of nature” and those who engage in “natural” intercourse, according to the Supreme Court in the case of Navtej Singh Johar v. UOI.

According to the ruling in Navtej Singh Johar v. Union of India, the LGBTQ+ group has access to all fundamental and constitutional rights. When precedents explicitly state that the LGBTQ+ community is entitled to the same fundamental rights as everyone else, the law cannot prohibit certain persons from adopting because they share the same gender. This concludes to say that, If the constitution upholds equality, then everyone must have the option of getting married, regardless of whether or not other people of the same sex desire to do so.

The right to marry whoever you want and form a family is an inherent right of a human being, and this right is enshrined in Article 21 of the constitution of India. The court noted that society was through a substantial period of change in Shafin Jahan v. Asokan K.M. and ors. [15] Marriage-related intimacy is protected by an unbreakable core of seclusion, and even religious matters would have little effect on it.

It has been also determined that the freedom to marry anyone one chooses and the freedom to start a family are essentially protected under Article 21 of the Indian Constitution. In a Bombay High court Judgement, Payal Sharinee v. Vinayak Pathak[16] the court held that adopting a child is an integral component of Right to Life under article 21 of the Constitution of India. The right to life not only to safeguard the rights of children who need the care and protection but also of the parents who desire children and want to form a family.

It would be discrimination against the LGBTQ+ community to deny them this right since it has been established that there is no intelligible differentia, which would be a violation of Article 15 of the Indian Constitution.

Imperative for legal change regarding same-sex adoption in India

Laws governing same-sex adoption are increasingly being called for to be changed as a result of changing social standards and a growing knowledge of the diversity of families. The idea of equality is at the core of the push for new laws. All citizens must be treated equally in a democratic society, regardless of their sexual orientation. The Indian Constitution’s anti-discrimination tenets are violated when same-sex couples are denied the opportunity to adopt merely because of their sexual orientation. Accepting same-sex couples’ ability to adopt will respect equality principles by guaranteeing that everyone has an equal chance to start a family and create a loving home for children.

The wellbeing and best interests of the child come first in any adoption situation. Children raised by same-sex couples do equally as well as those reared by heterosexual couples, according to a number of studies. For instance, the American Psychological Association has emphasised that parental behaviour and family relationships—rather than the parents’ sexual preferences—have a greater impact on children’s wellbeing. By limiting the number of prospective loving and caring homes and disregarding the wellbeing of numerous children who may benefit from adoption, the right to adopt is denied to same-sex couples.

When it comes to the numbers of children in India who require homes, there is a serious problem. Many youngsters spend a considerable amount of their childhood in institutional care as a result of the lengthy and complicated adoption procedure. By permitting same-sex couples to adopt, the pool of prospective adoptive parents would grow, boosting the likelihood that children waiting for adoption will find suitable and devoted homes. This larger pool of potential parents can lessen the strain on the already overworked adoption system and improve results for kids who need them.

The social environment is dynamic and ever-changing. The acceptance of same-sex adoption fits in with the global movement to acknowledge and respect various family forms. The legalisation of same-sex adoption in numerous places, including several Western ones, demonstrates how important inclusion and equality are. India should endeavour to lead social progress and show its commitment to human rights by accepting such legal reforms since it is a fast expanding country.

In India, same-sex couples are marginalised and stigmatised as a result of the current legal prohibitions on same-sex adoption. Denying people the ability to adopt keeps a feeling of inequity and exclusion alive, which is bad for their mental health. Accepting same-sex adoption will lessen these detrimental psychological effects by reaffirming the value and dignity of every person, regardless of sexual orientation.

In conclusion, there is an urgent need for legal modification in India with relation to same-sex adoption. The ideals of equality, child welfare, and societal advancement can be honoured by amending adoption rules to accommodate same-sex couples. Such legal changes would increase adoption opportunities, safeguard children’s safety, and advance a more open and equitable society. It is essential that India accepts these changes and cultivates a culture that values and honours the variety of family configurations and upholds the interests of its young people.

(The writer is a legal intern with cjp.org.in)

[1] https://www.oed.com/

[2] AIR 2018 SC 4321

[3] Universal Declaration of Human Rights (adopted on 10th December 1948) Article 16(1)

[4] https://www.indiacode.nic.in/bitstream/123456789/1638/1/AA1956____78.pdf

[5] https://www.indiacode.nic.in/repealed-act/repealed_act_documents/A2000-56.pdf

[6] https://www.indiacode.nic.in/handle/123456789/2318?locale=en

[7] Fuller, Lon L. “Positivism and Fidelity to Law: A Reply to Professor Hart.” Harvard Law Review 71, no. 4 (1958): 630–72. https://doi.org/10.2307/1338226.

[8] Dworkin, R. (1977) Taking Rights Seriously. Harvard University Press, Cambridge, MA

[9] https://www.equaldex.com/issue/adoption

[10] Hodges – 135 S. Ct. 2584 (2015)

[11] Navtej Singh Johar and Others Versus Union of India, Thr. Secretary Ministry of Law and Justice [2018] 4 MLJ (CRL) 306

[12] Arunkumar and Another Versus Inspector General of Registration, No. 100, Santhome High Road, Chennai – 600 028 and Others [2019] 4 MLJ 503

[13] Justice K S Puttaswamy (Retd.) and Another Versus Union of India and Others [2017] 6 MLJ 267

[14] Shayara Bano Versus Union of India and Others [2017] 6 MLJ 378

[15] Shafin Jahan v. Asokan K.M. and ors. (2018) 16 SCC 368, AIR 2018 SC 1933

[16] Payal Sharinee v. Vinayak Pathak 2010 (1)BomCR 434

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According to the Pew Research Centre survey, 53% of adult Indians are in favour of legalizing same-sex marriage. According to the survey’s graph, a considerable 28% of respondents “strongly supported” legalizing same-sex weddings, while 25% “supported it somewhat,” bringing the overall number of people in favour of legalizing same-sex marriages in the country to 53%.  On the other hand, 13% of Indian respondents indicated they were “somewhat opposed” and 31% said they were “strongly opposed” to legalizing same-sex marriage or enacting any policy to that effect, bringing the overall unfavourable reaction to almost 43%. Approximately 4% of respondents did not respond to the question.

Given that a significant and a majority section of Indians support making same-sex marriages legal, the survey results for India may be a boost for same-sex couples who recently argued for equal marital rights in the Supreme Court of India. The case was heard by a constitutional bench of the Supreme Court, headed by the CJI D. Y. Chandrachud, in the month of April, and the judgment in the case had been reserved.  Notably, the Union government had vehemently argued in opposition to providing marital rights to any couple other than the heterosexual couples, claiming that doing so violates Indian culture and the heteronormative framework that governs sexual relations. It is further essential to note, homosexuality has been decriminalized in India since 2018, and yet marriage between two consenting homosexual adults has not been legally recognised.

The study results for India further challenges the Bar Council of India’s (BCI) claim that “more than 99.9% of people in the country are opposed to the idea of same-sex marriage.” The BCI, an agency in line with the government’s view, had overstepped its ambit while appealing to the top court to desist from hearing the pleas seeking legalisation of same-sex marriage, terming it “highly inappropriate”. It had rather said the issue of marriage equality between heterosexual and homosexual couples is left to the legislative process. The BCI had stated that the data it released were based on its own survey, however, it never released a survey report that details the methodology, sample size, and other data points. The said resolution of the BCI, departed from its responsibility to promote law reform by opposing a judicial review of marriage laws, was criticized by many groups and individuals.

How queer friendly are other countries?

• According to the survey findings, in terms of global areas, people in Western Europe rose as firm supporters of same-sex marriage, with at least eight in ten respondents supporting it in Sweden (92%), the Netherlands (89%), Spain (87%), France (82%), and Germany (80%). Notably, same-sex weddings are permitted in each of these countries. In Poland and Hungary, however, only 41% of adults favoured the same-sex marriages.
• In North America, approximately eight out of 10 Canadians (79%) support same-sex marriage, as do 63% of Americans and 63% of Mexicans. Essentially, legal marital rights have been extended to the same sex couples in all these three nations.
• In South America, marriage between homosexual couples are supported by 67% of Argentinians and 52% of Brazilians. Both countries have legalized same-sex marriage.
• Over three-quarters of respondents in Australia (75%) and Japan (74%), respectively, support legal same-sex marriage in Asia-Pacific. While same-sex marriage is permitted in Australia, it is not permitted in Japan.
• Same-sex marriage is illegal in South Korea, and the issue is making headlines. In South Korea, 40% support legal same-sex marriage, while 59% oppose it. Same-sex marriage is strongly condemned by Indonesians. Only 5% of Indonesians favour same-sex marriage.
• The acceptance of same-sex marriage is the lowest in Nigeria, which a mere 2% of their population backing it.

Factors affecting views on same-sex marriage:

The said survey examined and recorded sentiments regarding a range of demographic variables, including age, gender, political ideology, and whether respondents believe religion to be essential in their life.

Age: The research also discovered that in 12 of the countries that were surveyed, those under 40 are more inclined than senior people to accept homosexual marriage.

Gender: In 14 of the surveyed countries, women were more likely than men to say they support allowing gays and lesbians to marry legally.

Religion: In general, countries where a higher percentage of respondents said religion was important to them, showed lower acceptance of legalising same-sex marriage. Similarly, people who are not affiliated with a religion are much more likely to say they support same-sex marriage.

Political ideology: Views on same-sex marriage are related to political ideology in 16 of the 18 countries. In these countries, those on the ideological left are significantly more likely than those on the right to favour allowing gays and lesbians to marry legally.

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Right to Same Sex Marriages is not a right that can be claimed: Union to SC

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Marriage enjoys social recognition but also a legal sanction. The unique structure of the Indian Legal system is the lack of coherence as to how the Indian legal system understands the institution of marriage. Keeping in mind the precept of secularism, various personal laws were codified and structured to give recognition to existing social practices. This resulted in a heterogeneous understanding and engagement of the legal system with the institution of marriage.

While both the Hindu personal law and the Christian personal law view marriage as a sacred union between legally permissible adults, the Muslim personal law understands marriage from the position of contract. How do the two understandings differ? Marriage as a contract becomes an agreement between two willing parties. Globally, contractual marriages recognise the varied and differing positions of the two parties individually. This recognition translates in first the possibility of collective and personal assets and formalises protections for both the parties of the marriage contract at the time of dissolution/divorce.

On the other hand, marriage as a union engages with the willing parties as a single unit. This formulation of the institution benefits the policy framework by instituting the continuation of lineage and property and aiding as the focal point for the state to engage with child care, nutrition etc. Personal laws further complicate this understanding within India. Here the union then takes upon itself the burden of religious sanction through the rituals and practices which constitute a marriage. Then this marital union takes the shape of a sacrament.

Cabinet Minister of Law and Justice, KirenRijiju, spoke to the importance of marriage as a union for the policy system itself. While speaking about the pending decision and cases in the Supreme Court he states, “The government is not interfering with the personal life or activities of an individual. Personal freedom or personal activities of citizens are never questioned or disturbed or regulated by the government. However, when the issue concerns the institution of marriage, it is a policy matter that needs serious discussion”, quoted by ANI.

Here the government seems to be creating a qualificatory distinction between marriage and what constitutes ‘personal’ for an individual. The government seems to be interested in conversing with the institution of marriage from the singular lens of policy impact and fails to recognise that the act of marriage and the choice of partner continue to be personal and integral acts for any human being. This position of marriage is a fundamental personal liberty is recognised as a constitutional guarantee within the ambit of Article 21 (LakshmibaiChandaragi B. V State of Karnataka, 2021).

The legislative wing of the state has time and again intervened in this personal liberty to influence both the practice and the institution of marriage itself. These transformations began with the Age of Consent controversy in 1891. The bill introduced by the British paved the way for a legal history where the Indian State used the method of legal sanctions to correct social practices associated with the institution of marriage.

These sanctions have been motivated by a unifying thread of gender equality. Be it the myriad of laws composing the Hindu Code Bill in the 1950s, The Protection of Child Marriage Act of 2006 and the recent Bill on Prohibition of Child Marriage tabled in the Indian Parliament. The Indian Legislature has had a history of using legal methods and tools to correct ‘gender’ justice. These policy formulations have attempted to tackle concerns of domestic violence, age of marriage, rights to property, and rights of dissolution. Though motivated and aimed towards gender equality they always have not had the intended results.

The same case cannot be made for the Indian Judiciary. While the engagement of the judiciary with the institution of marriage is more continuous and sustained, the judgments have oscillated in their positions.

The judiciary has fought patriarchal legal provisions within the law itself by overturning various lower court judgements on the restitution of conjugal rights (Sushil Kumar Dang V Prem Kumar, 1976). At the same time, the judiciary has not given adoptive rights (Sitabai V Ramachandra, 2020) and given weightage to the sanctity of marriage through personal laws furthering the political stand that the ‘Union must and should not interfere in the home’(Harvinder Kaur V Harmander Singh, 1983).

Today, the idea of what constitutes gender justice has expanded; the conversation has moved from two poles to the idea of a spectrum. With this expanding understanding of gender, which has now been recognised by the Indian State through judicial intervention, all previous legislative and judicial interventions within the institution of marriage become precedence towards sanctioning same-sex marriage itself. The very unilateral conversation that the government is raising in opposition to the petitions, provides fertile ground for recognising same-sex marriage.

The Special Marriage Act of 1954 was another legislative intervention aimed at correcting many inequalities within existing religious and personal laws. It was a strategy employed by the Indian political system to correct glaring difficulties in accessing inter-caste and inter-religious marriages within the Indian social structure. It takes over the sanctioning authority from religion to law by the provision of the Institution of Marriage through state geared registration. The act of registration of marriage gives it the position of a civil contract within the law.

The 18 petitions in the court seek recognition of same-sex marriage within the Special Marriage Act of 1954. Given that the aim of the law in itself was to ensure accessibility and liberty in the choice of marriage beyond religious sanctions. The petitioners are well within their constitutional and legal purview to seek a missed recognition within the law. As discussed, this constitutional liberty cannot be abridged.

Contrary to the opposition to the petition, the civil contract under SMA, 1954 does not necessarily take away the possibility to continue to engage with the institution of marriage for policy measures. It does make the movement within and away from the institution of marriage itself relatively easier. Simply because the civil contract of marriage recognises that agency, at the end of the day, lies within the hands of the two parties themselves. This agency then becomes the second tenant of the Special Marriage Act. The petitions seem to be asking why this agency is restricted to archaic notions of gender and sexuality.

Furthermore, the Special Marriage Act 1954 employs a gender-neutral language of person/people. This employed gender-neutral language coupled with the very aim of the Act has created fruitful conditions for the demand to expand the understanding of marriage beyond ‘the bride’ and ‘the groom’ within Indian political and legal systems. Though the petitioners have to continue to point to the difference between the right to love and the liberty to marry. Given that the legal and political framework in India has gone on to recognise that the social practice of marriage is no longer sine-qua-non to sexual intercourse. The recent bill introduced in the Parliament on Prevention of Child Marriage Bill, 2021 recognises the age of consent to be 18. Judicial proceedings have gone on to give couples living in long-term cohabitation akin to a marriage similar rights as spouses. These protections and securities are not guaranteed but have gone on to recognise the changing nature of social relationships. Though these recognitions continue to be heteronormative simply because the sanction of marriage continues to be heteronormative.

The Indian judiciary has transformed the legal, political and policy framework to expand their understanding of gender from the male-female polarity. The commitment to this task has been long due. Through a slew of recent judgements, the idea of the citizen now recognises the third gender, privacy has been given sacrosanct importance and as late as 2018, the SC decriminalised homosexual sex. Yet the conversation has remained to give access to complete freedom within the privacy of homes.

What is unique to the current case is that the demand for ‘same-sex marriage’ not only accepts the right to love but also recognises and formalises that the idea of love, marriage and sex is no longer heteronormative within India. Keeping the emotional and sociocultural elements of the choice of marriage and partner, expanding access to marriage as an institution would not merely accept various gender and sexualities, it would recognise their presence.

(Sakshi Sharda is a Research Associate at Social Policy Research Foundation (SPRF) and an Editorial Consultant with Taylor and Francis, India. She has completed her MPhil from the Centre for Political Studies; SPRF is a think tank of young research professionalsthat seeks to intervene in matters of public policy)

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At this pivotal moment, the possibility of enlarging some of these rights to same-sex couples is under consideration. The Special Marriage Act 1954, the Foreign Marriage Act 1969, the Hindu Marriage Act 1955, the Citizenship Act, and the Transgender Persons Protection of Rights Act 2019 have been scrutinised at the hearings.

The ideas of family and parenthood are indeed in transition in India, and there is a firm swing away from joint to nuclear families, perhaps even to single parenthood. But there’s little to no discussion on the role of anti-discrimination laws in securing citizens’ rights, which become crucial as these ideas change. Recall that anti-discrimination is the focal point of the demand for marriage equality—but there is no attention to discriminatory practices against same-sex couples in areas beyond family law and marriage.

Rights of admission reserved

Imagine a notice outside a wedding venue that reads: ‘Same-sex Marriages Not Conducted Here’, a hotel sign that says, ‘No Reservations for Same-sex Couples Accepted’, and so on. Recently, a restaurant in Assam emblazoned on its menu: ‘We don’t serve people of doubtful citizenship/illegal immigrants.’

Therefore, India is not new to denying access based on inequality or differences of status and hierarchy, especially in the context of caste. However, ‘modern’ public spaces should not resemble colonial spaces, which alienated some and permitted others based on their whims. Segregation based on sexual identity, such as at clubs, workplaces, or restaurants, would exacerbate discrimination.

Economist Amartya Sen’s social choice theory, which won him the 1998 Nobel Prize in economics, distinguishes availability from access to resources. Examining deaths during the Bengal famine, he found that the godowns had food grains, but the people could not access them due to what Sen terms “entitlement failure”. In other words, every person can be considered entitled to goods and services. Further, entitlements are bundles of goods and services from which a person can choose one or some. Therefore, the logic is simple—to prevent an “entitlement failure”, public policy must bridge the gap between availability and access.

Brought to the same-sex couples’ context, the availability-access question would be: if they have a legal right to facilities offered by businesses and non-profits, does it mean they are actually able to access them?

Where marriages of same-sex couples do have social and familial approval to the point that they will participate in the ceremonies, it will be a public event—which comes at a high monetary cost. The public nature of marriage—its element of spectacle—is also where bias and discrimination come into play. At each step of wedding planning, from caterers and decorators to venues and transport services, all or any can deny services or create new rules to deny access to same-sex partners. In such a situation, can a couple sue for denial of service because of their convictions on marriage, as in the United States?

This may not survive a legal challenge in India because Article 19(1)(g) of the Constitution only guarantees freedom of trade, profession, occupation, or business. The provision does not overtly protect litigants from discriminatory business practices. Further, Article 15 says the State shall not discriminate based on religion, race, caste, sex, or place of birth. Must it be amended to include denial of service in its protections?

In the Navtej Singh Johar case, the Supreme Court expanded the narrow view that any ground of discrimination, direct or indirect, founded on a particular understanding of the role of sex, is discrimination under Article 15. Therefore, it covers sexual orientation and gender identity. Unfortunately, gaps remain. For instance, the Consumer Protection Act 2019 (CPA) empowers a consumer to sue for a deficiency of a good or service only after it has been provided. In other words, the CPA does not foresee discrimination before a service has been provided. If it were the case, the law would have made businesses more conscious of their conduct. The bottom line is that denial of service will hurt the ability of same-sex couples to enjoy goods and services opposite-sex couples can take for granted.

Who will solemnise marriages?

Thirty-four countries recognise same-sex marriages, but India’s case is unique, given its cultural and religious plurality. So can discrimination claims legally be brought against religious organisations or individual priests who refuse to solemnise marriages of same-sex couples? Should courts interfere if religious groups demonstrate prejudices such as sanctions, temporary bans or censure of same-sex couples seeking to marry? Even if same-sex marriage is accepted in the religious or spiritual domain, what safeguards are required to protect such a couple from social stigma and taboos? Most importantly, will same-sex couples enjoy the reciprocity of marriage in other countries the way opposite-sex couples do?

A silver lining in this regard is the Arya Samaj, which views the varna system as based on professional and educational criteria rather than caste at birth, allowing inter-caste marriages. In England and Wales, same-sex marriage and same-sex civil partnerships have similar rights, paved the way for acceptance.

Discrimination in housing

The right to shelter set forth by the Supreme Court in Chameli Singh vs State of Uttar Pradesh includes the right to live in any civilised society with access to proper food and water, a clean environment, education, shelter, medical care, and rights related to mental, physical, intellectual and spiritual growth. Without these, no human being can be a useful citizen, perform their fundamental duties, or participate in the democratic process.

However, legalising same-sex marriage will not change much if same-sex couples still face discrimination when renting or buying property, arbitrary evictions, rent exploitation, and other restrictions based on traditional assumptions of what constitutes a family.

In Obergefell v Hodges, 2015, the United States Supreme Court recognised same-sex marriage reaffirming a dynamic theory of constitutional law that takes account of “society’s evolving experience and evolving law of families”. Justice Kennedy observed that marriage laws harmed the children of same-sex couples because ‘without the recognition, stability, and predictability marriage offers, the children of same-sex couples suffer the stigma of knowing their families are somehow lesser’.

Any law that creates sex-based classification would militate against the foundation of Article 14. The philosopher Giorgio Agamben, who distinguishes citizens from subjects as those who enjoy rights versus those who obey the laws, says that the State of exception is “a zone of indistinction” in which “there is no difference between law and force, wherein individuals are subjects to the law but not subjects in the law”.

Put another way, if the law marginalises same-sex couples, preventing them from accessing any rights, any legal recognition they do get might also prove less effective than it could be. If it follows that since discrimination is legally undefined, the instances of same-sex couples not being treated as equals to opposite-sex couples will curtail the extent of marriage equality. Finally, if religious superiority and cultural supremacy hold sway in the garb of maintaining traditional social harmony, equality will remain an unrealised dream for LGBTQIA+.

The author is an assistant professor at St Joseph’s College of Law, Bangalore. The views are personal.

Courtesy: Newsclick

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Since April 18, all eyes have been on the Supreme Court of India as it hears a batch of petitions seeking legal recognition for same-sex marriage in India, or seeking equal marital rights.

A five-judge constitution bench of the Supreme Court comprising of Chief Justice of India DY Chandrachud, and Justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha, is hearing the petitions had been hearing the said petitions since last week.

Online live hearings have so democratised a normally opaque process with unconfirmed reports suggesting that viewership on Netflix, the OTP platform has dipped as a result!

Same-sex and queer couples from around the country have approached the Supreme Court with a plea stating that same-sex and queer marriages should be legalised under the Special Marriage Act that currently allows for inter-religious marriages amongst others. Through this petitions, rights ancillary to marriage, such as family insurance, divorce, adoption, maintenance, succession are also being demanded by a number of petitioner.

The petitioners have made their arguments before the bench, and the union government’s arguments are still being heard. It is worth noting that the two days before the bench was scheduled to hear the petitions, the Centre had submitted a 102-page document opposing the petitions filed by couples seeking equal marital rights, deeming it an “urban elitist concept far removed from the social ethos of the country.” The Modi-led union government told the Supreme Court that the petitioners were advancing “mere urban elitist views for the purpose of social acceptance” by demanding equal marriage rights. According to this untested stance, neither uncodified personal laws nor codified statutory laws recognise or accept marriage between two individuals who are not biologically male and female. The union government had also stated that if the demands of the petitioners are heard and met, it will wreak “complete havoc” on the delicate balance of personal laws and “accepted societal values.” Finally, the union government representated by none less than its blue eyed boy, Solicitor General, Tushar Mehta argued that the issue cannot be decided by a Court of Law and that it is up to the legislature to amend the law, if at all.

Jamiat Ulama-i Hind, a representative of Muslims, has also filed their objections against the petitions, claiming that the pleas of the petitioners are an attack on the family system and violate all personal laws. “This concept of same-sex marriage goes to attack the family system rather than making a family through this process,” it had said. Jamiat is being represented by Senior Advocate Kapil Sibal, and is yet to be heard.

Even though this case is still being heard, the “opposition” views being expressed against the equal marriage rights petitions are no longer limited to the court or the parties to the petitions, with many groups voicing their opposition, making baseless claims in desperation, and asking the Supreme Court to simply, not hear the said petitions.

While the petitioners, queer community and LGBTQ+ activists have to hear the misinformed, downright derogatory arguments being made by the the union government, vociferously if ridiculously put by Solicitor General Tushar Mehta, there is another lively debate being conducted outside of the court wheregovernment agencies and mouth pieces, far-right religious leaders and groups of citizenry are strongly opposing the expansion of equal marital rights.

Opposition by the Bar Council of India

On April 23, a Sunday, the Bar Council of India (BCI) passed a resolution opposing legal recognition of same-sex and queer marriages, requesting that the Supreme Court refer the matter to Parliament because it would have far-reaching implications for socio-religious traditions. The BCI self-appointed themselves to be the “mouthpiece of the common man,” claiming that the legislature is “truly reflective of the will of the people” and that “more than 99.9% of the people in the country” oppose same-sex and queer marriage. The resolution further said that any decision by the Supreme Court in favour of the petitioners in the case will be “treated as being against the country’s culture and social religious structure.”

Now, the BCI is a statutory body who’sregulatory and representative mandate for the legal profession includes, among other things, establishing standards for professional conduct as well as protocol for advocates, protecting advocates’ rights, privileges, and interests, and advocating for and promoting law reform. The council has so far not been pro-active in carrying out its function of promoting and supporting any sort or kind of legal reform by issuing this unnecessary and misinformed resolution with unsubstantiated claims. In doing so, the statutory body has not lived up to its mandate under the Advocates Act of 1961. More importantly, it questioned the Supreme Court’s fundamental role in preserving constitutional principles in their true spirit and entirety. Furthermore, the BCI’s lobbying of legislative primacy in the matter condemns its own queer members, some of whom are openly queer and have had to deal with homophobia in denial of being offered a judgeship, such as Advocate Saurabh Kripal, as well as the larger LGBTQIA+ population, to suffer a deprivation of freedoms and rights as a consequence of legislative inaction.

The Council also departed from its responsibility to promote law reform by opposing a judicial review of marriage laws, specifically the Special Marriage Act, which sought to recognise unions that did not conform to what different communities held to be “acceptable”. The said resolution was criticised by many groups and individuals. Queer collectives from 36 Indian law schools, including National Law University Delhi, Faculty of Law, Delhi University and Gujarat National Law University, comprising of more than 600 students, condemned the BCI resolution as “ignorant, harmful, and antithetical to our Constitution and the spirit of inclusive social life,” demonstrating the BCI’s lack of understanding of its mandate. In a document titled “Representation against the bar council of India’s resolution on marriage equality”, the students said they strongly condemn the BCI’s “regressive and queerphobicresolution on marriage equality. The statement also added: “It (BCI resolution) attempts to tell queer persons that the law and the legal profession have no place for them. We, the undersigned, are queer and allied student groups across Indian law schools.”

A strong worded critique of the BCI’s resolution was also expressed by Trinamool Congress MP Mahua Moitra who slammed the BCI for urging the Supreme Court not to hear the same-sex marriage case and for its ‘99 percent Indians opposing it’ remark. Moitra addressed the BCI in a series of tweets, saying “you are oath-bound to protect constitutional morality, and not popular sentiment. Gentlemen – have you truly lost your minds? Even if 1 person’s freedom is encroached on, SC is bound to hear it,” the TMC MP said. She also brought forth the male-dominated culture of the BCI and wrote in another tweet, “India world’s largest democracy with 49% women population. Bar Council of “India” however, is an all male body which hasn’t held elections for the longest time. And BCI lecturing the Supreme Court on what “99% of Indians want” Gentlemen, enough already. Zip it.” She also said, “Maybe if BCI held timely elections you wouldn’t even be in your seats in your little boy’s club with no women. Shame!”

On April 28, the Supreme Court Bar Association (SCBA) also passed a resolution condemning the Bar Council of India’s statements opposing same-sex and queer marriage legalisation, as well as the hearing and decision-making process taking place in the Supreme Court of India. In their resolution, the SCBA stated that it was “highly inappropriate of the Bar Council of India” to oppose the same sex case hearing because it is the Supreme Court’s right to decide whether the matter should be adjudicated by court or left to parliament.

Opposition by other parties and agencies

It is essential to note that while the Supreme Court is not bound to consider the resolution of the BCI, its corrosive effects cannot be ignored. The openly homophobic resolution passed by the BCI rolled the stone, and soon enough, more agencies and organisations came in support of the BCI and the government. A day after the issuance of the BCI resolution, the Delhi’s District Court Bar Associations also expressed their displeasure on the day-to-day proceedings on a batch of petitions presently examined by the Constitution Bench of Supreme Court pertaining to ‘marriage equality rights for LGBTQIA+ community’. It said that the social ramifications of the proceedings before the Supreme Court are colossal and have the “potential for an unintended impact on the social fabric”.

In a rare show of unity, leaders from all of India’s main religions (the male leadership that us!) – Hindu, Muslim, Jain, Sikh and Christian – also opposed same sex union, with several of them insisting that marriage “is for procreation, not recreation”.

The Vishwa Hindu Parishad (VHP), a far-right extremist group, with a record for aggression and violence against minorities, even causing disharmony, also took it upon themselves to criticise the Supreme Court, said the “haste” with which the Supreme Court is disposing of the petitions for legal recognition of same-sex marriages is not appropriate. The “Hindu-tva” body, which has the support of the current government at the centre, said the apex court should have sought the opinion of religious leaders and experts from diverse fields before launching on this constitutional challenge!

End April 2023, to top it all, 21 retired high court judges wrote an open letter saying allowing same-sex marriage would have a “devastating impact on children, family and society”. They added that it could increase incidence of HIV-Aids in India and expressed concern that it could “negatively affect the psychological and emotional development of children raised by same-sex couples”.

On April 27, more than “120 eminent citizens,” including retired high court judges and former bureaucrats, wrote to President Droupadi Murmu  to express their opposition to what they called “highly objectionable attempts” to legalize same-sex and queer marriages. They claimed that same-sex behavioral institutions are irrational and unnatural in Indian society and culture.

Former CAG Rajiv Mehrishi, former home secretary L C Goyal, former foreign secretary Shashank, former RAW chief Sanjeev Tripathi, Justice (retired) S N Dhingra, and Justice (retired) Lok Pal Singh were among those who signed the letter.

They stated that it was critical to advise the Supreme Court of the precise estimate and outcome of such a “culturally disastrous” step in the name of a “ground-breaking approach.” They claimed that discussion about human institutional relations such as marriage is “essentially a legislative function,” and that courts should “refrain” from creating, recognising, or demolishing the institution of marriage through judicial interpretation or by striking down or reading down the existing legislative framework for marriages. They also stated in the said letter that it was “widely appreciated” that same-sex relationship “can’t create long-term or stable institutions”.

On April 26, the Union Law Minister Kiren Rijiju also said that an important matter like the institution of marriage should be decided by people of the country and that courts are not the forum to settle such issues. Referring to the Constitution bench of the top court hearing the matter, Rijiju said, “If five wise men decide something which is correct according to them — I cannot make any kind of adverse comments against them — But if people do not want it, you cannot impose things on the people…”

The views of the law minister came as no surprise as he has been indulging in an aggressive power battle with the highest judiciary, having the backing of the BJP government, with the current CJI of India. But what is disappointing isthat, with the exception of the CPI(M), all the political opposition parties are keeping a prudent silence on the issue of legalising same-sex and queer marriages.

While it is necessary to keep in mind the opposing views being put forth and language being used to when it comes to expanding basic right to a community which has existed as a part of India since time immemorial, it is also essential to focus on the ones showing the community support while they fight this fight.

The support shown for the petitioners in their fight for marriage equality and ancillary rights

The petitioners for marriage equality received a significant boost when the Indian Psychiatric Society (IPS), the country’s leading mental health group representing over 7,000 psychiatrists, issued a statement in their support.

“Homosexuality is not a disease,” the IPS stated, adding that discrimination against LGBTQ+ people could cause “further mental health issues in them.”

The Delhi Commission for Protection of Child Rights (DCPCR) also supported the petition, stating that the federal and state governments should take steps to raise public awareness about the “normalcy” of same-sex family units. Multiple studies on same-sex parenting have shown that same-sex couples can be good parents, according to their report. The statement of the IPS carries a certain amount of weight because the Supreme Court referred to a similar statement supporting gay sex decriminalization in its decision in 2018.

On April 25, a group of over 400 parents from ‘Sweekar-The Rainbow Parents’ wrote to Chief Justice of India (CJI) D Y Chandrachud urging that their LGBTQIA++ wards be granted the right to “marriage equality”. ‘Sweekar-The Rainbow Parents’ is a group formed by the parents of Indian LGBTQIA++ wards with the aim of supporting each other to accept one’s child fully and be happy as a family.

“We are appealing to you to consider marriage equality,” the letter said. The letter also said that “We desire to see our children and children-in-law find final legal acceptance for their relationship under the Special Marriage Act in our country. We are certain that a nation as big as ours which respects its diversity and stands for the value of exclusion, will open its legal gate of marriage equality to our children too. We are growing old. Some of us will touch 80 soon, we hope that we will get to see the legal stamp on the rainbow marriage of our children in our lifetime.”

The full letter of support can be read here:

Conclusion

A human rights issue has become a central debate in our country now, where one set of persons are demanding legal recognition and support as a marginalised community. This community is demanding equal and basic rights from the court, while the other side is demanding for their continued oppression and suppression in the name of “culture and marital sanctity.” The Indian Constitution gives all citizens the right to marry a person of their choice and prohibits discrimination on the basis of sexual orientation and their petition should be allowed since “constitutional morality is above social morality”.

And yet, the queer community has had to approach the highest court of law and hear people oppose their demands stridently. They are making an impassioned please for simply, equal rights.

Related:

The question of diversity and inclusivity in the Indian judiciary

Transgender Woman is a “Bride” under Hindu Marriage Act:  2019 Judgement, Madras HC

No proposal for affirmative action in education or employment for transgenders: Govt

Independent Views, Gender Orientation must not affect candidacy for judgeship: SC

SC Collegium recommends elevation of first openly gay judge to Delhi HC

Madras HC bats for LGBTQIA+ again, issues more directions to police, media

M’traGovt moves HC against MAT Order directing inclusion of Transgenders in police recruitment

Supreme Court directs Centre to frame policy on jobs for transgender persons

Transgender Activists Say UP Cop Beat Them up for Sheltering Trans Son in Gurugram

Madras HC expresses “dismay and anguish” as NCERT removes report on gender non-conforming, transgender children

Same sex marriage is not an elitist concern: Akkai Padmashali

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Why are we talking about Sri Lanka? Well, first, we are talking about BASL is to establish that lawyers and in general legally aware people are also very political people and usually stand up for fundamental rights, the protection of life and liberty of all. Second, it is to present the sharp contrast between a Bar Association’s conduct during a crisis in Sri Lanka, and the actions of the Bar Council of India—the BCI– recently during the ongoing Marriage Equality hearings in the Supreme Court of India (SCI).

Five days into the hearings of the Constitution Bench of the SCI, the Bar Council of India passed a resolution on April 23, 2023 stating that “any decision by the Supreme Court in such a sensitive matter may prove very harmful for the future generation of our country”. It is a refreshingly fresh stance that BCI has taken, to especially stand for the future generations of the country. As the statutory body that concerns itself with regulation of legal practice and legal education, to take on the mantle to represent all of India’s future generations is truly a herculean task.

“Every responsible and prudent citizen of the country is worried about the future of his-her children after coming to know about the pendency of this matter before the Hon’ble Supreme Court”, stated the resolution. Again, the BCI is now also the All Parents’ Association or at least, the Parents’ Representative. Oh, right! It is the representative of parents and therefore it also took upon itself the task to represent all future generations.

The resolution also said that Bar (Council of India-BCI) is the “mouthpiece of the common men” which is why the meeting (of all the State Bar Councils) is expressing their anxiety over the issue. It is not of any significance that there are no women in the list of office bearers in the BCI. May be therefore the careful drafting of resolution has taken place to include the word “mouthpiece of common men” instead of “mouthpiece of the people, the masses.”

Truly, the BCI personnel are master drafters.

Even the ruling BJP cannot boast of representing this vast a section of future generations, ‘responsible and prudent’ parents and the common men. It is puzzling as to why the common men’s mouthpiece-otherwise known as BCI did not pass a resolution on the Electoral Bonds issue or even released a simple statement. One might suggest, or even say, that the chairman of the BCI is a valorous supporter of the Prime Minister and therefore, the Electoral Bonds Scheme brought in by the current government was not under BCI’s minute moral scanner. I want to refute that. It seems like BCI, in its infinite wisdom, which you or I cannot seem to appreciate, has just decided that Electoral Bonds is not a common man’s issue. Even in the case of Section 370 or the Citizenship Amendment Act, 2020, the BCI seems to have employed its selective wisdom.

Additionally, the BCI also seems to have undertaken its own survey and Census of the Indian population! Now, this is an unprecedented achievement given that even the government goes through elaborate processes and challenges while conducting the census. From the apparent survey, BCI seems to have claimed that more than 99.9% of people of the country are opposed to the idea of same sex marriage.

All this together points out to the fact that the BCI can no more be restricted to its objectives as stated in the Advocates Act, 1961. After all, who will not to benefit from the infinite wisdom coupled with irrefutable data that is being provided by the BCI?

Finally, the BCI also took up the role of a historian. It said “As per documented history, ever since the inception of human civilisation and culture, marriage has been typically accepted and categorised as a union of biological man and woman for the twin purpose of procreation and recreation. In such background, it would be catastrophic to overhaul something as fundamental as the conception of marriage by any Law court, howsoever well intentioned it may be.”

As for BCI’s claim that the aim of marriage is for the twin purpose of procreation and Recreation, it is for women lawyers and feminists to respond. I am more intrigued by the vast documentation BCI must have perused to arrive at this statement.

As a citizen, you might worry about state trampling on your civil liberties, or about the fast changing nature of democracy with the advent of big money from corporations during elections, or about dangerous constitutional changes. You might also worry that you have no one to rely on, which could be true too but, there is one upside.

You can always rely on Bar Council of India to act wisely and give out a set of irrefutable facts and data; in the areas it has no expertise at all of course!

(The author is a legal researcher with the organisation)

Related:

Transgender Woman is a “Bride” under Hindu Marriage Act:  2019 Judgement, Madras HC

Right to Same Sex Marriages is not a right that can be claimed: Union to SC

Poor allocation, negligible disbursement: Whither schemes for transgender welfare?

9 years since the passing of the NALSA judgment, has the cycle of discrimination and ostracism finally been broken for the transgender community?

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