The importance of this issue cannot be understated, as it touches upon fundamental rights, privileges, and obligations that are bestowed and protected by the law. The Supreme Court has meticulously heard arguments from petitioners and respondents for ten days, including the union government, the National Organization for Children’s Rights, NCPCR, and a group of Islamic scholars known as the Jamiat-Ulama-i-Hind.

Petitioners’ Demands

Eighteen couples have petitioned for the legal recognition of same-sex marriages. The petitioners involved in these cases have fervently campaigned for fundamental reforms to the legal landscape, seeking to establish a more inclusive and just society. Their pleas can be summarised as follows:

1. Recognition of Same-Sex Marriages: The petitioners contend that refusing same-sex unions legal recognition is discriminatory and violates the equality, privacy, and dignity rights of LGBTQIA+ people. They seek a judicial declaration that same-sex marriages should be treated on par with heterosexual marriages, granting equal legal rights and benefits.
2. Non-discrimination based on Gender and Sexual Identity: Laws and regulations, according to the petitioners, cannot discriminate against anyone based on their sexual orientation or gender identity. Any categorisation that privileges one group over another based on sexual orientation or gender identity is unlawful since it denies LGBTQIA+ people equal protection under the law.
3. Reinterpreting Current Laws: The petitioners ask the courts to construe current marriage laws in a way that these are inclusive and take the rights of the LGBTQIA+ community into account. Reinterpreting the law would ensure that same-sex unions are not prohibited purely because of their sexual orientation or gender identity.
4. Repealing or Amending Discriminatory Provisions: A number of petitioners want certain parts of the marriage laws that are discriminatory repealed or changed. The petitioners contend that gender-neutral wording should be used in place of these clauses to cover all couples, regardless of gender identification.
5. International Commitments to Human Rights and Constitutional Morality: The petitioners emphasize the importance of constitutional morality in creating effective laws. They also stress India’s responsibilities to international human rights and call for a match between national legislation and those standards.
6. Protecting “Chosen Families”: Some petitioners call for the legal recognition and protection of “chosen families” or “atypical families” beyond the conventional bounds of marriage, blood relationships, or adoption.
7. Comprehensive Safety and Legal Protections: A number of petitioners want complete legal safeguards for the LGBTQIA+ community, including measures to address the violence, discrimination, and harassment faced by them.
8. Positive State Responsibility to Affirm Rights: The petitioners stress that it is the state’s responsibility to acknowledge and defend the rights of LGBTQIA+ people.

Union government’s position

The Union government, headed by the right-wing Bharatiya Janata Party (BJP)  has vehemently opposed any constitutional declaration that would legalise same-sex marriages, arguing that it does not align with the Indian concept of marriage. The key arguments presented by the government in its counter-affidavit can be summarized as follows:

1. The Uniqueness of the Indian Family Unit: The government argues that a relationship between a biological man as a husband, a biological woman as a wife, and their offspring produced out of the union is the essence of marriage in India.
2. Heterosexuality and Statutory Recognition: According to the government, current marriage-related personal legislation and statutory enactments exclusively recognize heterosexual partnerships.
3. Issues with Current Laws: The government points out potential challenges in matters relating to adoption, divorce, maintenance, and inheritance if same-sex marriages were to be legally recognized.
4. Interest of the State in Heterosexual Marriages: According to the government, only recognizing heterosexual unions is consistent with past practice and essential to the survival and continuity of the State.
5. Fundamental Rights and Reasonable Classification: According to the government, Part III of the Constitution does not infringe any fundamental rights by refusing to recognize same-sex unions.
6. Privacy and the Right to Marry: The government acknowledges that marriage includes private persons and has an impact on their lives, but insists that it is more complex than a simple privacy concern.

Arguments made in Court

During the ten-day proceedings, the petitioners and respondents engaged in a robust exchange of arguments. The key arguments made during the hearings can be summarized as follows:

1. Fundamental Right to Marry: The petitioners argued that the LGBTQIA+ community has a fundamental right to marry, guaranteed under the Constitution.
2. Gender-Neutral Interpretation of SMA: The Special Marriage Act, 1954, with its gender-neutral language, was crucial in the hearings. Petitioners argued that this phrase does not impose any gender-based restrictions and should be interpreted as inclusive of same-sex couples.
3. Innate Characteristics and Equality: Advocates emphasized that laws must not discriminate based on innate characteristics, such as sexual orientation and gender identity.
4. Procreation and Marriage: The respondents argued that marriage’s primary purpose is procreation, and legalizing same-sex marriages would go against this traditional understanding.
5. Notice Period under SMA and Privacy Concerns: During the hearings, the notice period clause under the Special Marriage Act, 1954, was questioned by the petitioners for potentially violating personal privacy and autonomy.
6. Recognition of Same-Sex Marriages Abroad: The issue of recognizing same-sex marriages performed abroad under the Foreign Marriage Act, 1969, was raised during the hearings.
7. Parenting and Child Welfare: Concerns about child welfare were expressed, with respondents arguing that same-sex parents might not provide adequate care.
8. Parliament’s Role vs. Judiciary’s Role: The respondents contended that the issue of same-sex marriages should be left to the Parliament rather than the judiciary.

Key Issues for the court to consider

The court will take into account several key issues when rendering its decision, including whether members of the LGBTQIA+ community have a fundamental right to marry, and if so, whether the court can make a declaration to this effect.

Conclusion

In conclusion, the pending judgment on the legal recognition of same-sex marriages is a groundbreaking decision that holds significant implications for the rights and equality of the LGBTQIA+ community in India. The court’s ruling will not only shape the legal landscape surrounding marriage but will also reflect the nation’s commitment to inclusivity, dignity, and non-discrimination.

The fervent arguments presented by the petitioners underscore the fundamental right to marry and the need for gender-neutral interpretations of existing laws. The government’s opposition raises concerns about preserving the uniqueness of the traditional Indian family unit. As we await the Supreme Court’s decision, it is crucial to recognise the historic importance of this case and its potential to create a more inclusive and just society

Related:

Pew Research Centre: 53% of Adults in India Support Legalisation of Same-Sex Marriages

Equal marriage rights: A deep dive into the resistance, showcasing those resisting non-discrimination

Queer and Proud: The last legal challenge to a law that criminalises homosexuality

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

Same-sex marriage an assertion of love, marriage & inclusivity

Decoding Discrimination Against Same-Sex Couples

The post In the face of conservative opposition, India’s Supreme Court will decide on petitions on Same-Sex Marriage appeared first on SabrangIndia.

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)

The post Nepal sets historic precedent, legalises same-sex unions appeared first on SabrangIndia.

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)

The post Same-sex marriage an assertion of love, marriage & inclusivity appeared first on SabrangIndia.

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

The post Decoding Discrimination Against Same-Sex Couples appeared first on SabrangIndia.

The task at hand for Justice Venkatesh was not to legitimise a same sex relationship, since the Supreme Court has already observed in Navtej Singh Johar v. Union of India and Ors (2018) that homosexuality is neither unnatural nor is it a “mental disorder or a disease”. It was a petition by two women in a same sex relationship fearing danger to their lives from their families and seeking non-interference in their lives. 

The court could have simply declared that they are two adults and they have the right to live their lives on their own terms. Yet, his Lordship set aside his hat as a judge of the Madras High Court, and assumed the role of a commoner, attempting to understand the LGBTQIA+ community. He admitted his ignorance and wanted to give an honest order without defying his beliefs. So, he made an honest endeavour to challenge his own beliefs by undergoing counselling to understand the LGBTQIA+ community.

The petition and hearings

The petition was filed seeking police protection from the parents of the petitioners, and to direct them not to interfere with the lives of the petitioners. In April, the court had directed that the missing persons FIRs filed by both sets of parents be closed immediately. Justice Anand Venkatesh had also stated that he will himself undergo psycho-education. “I honestly feel that such a session with a professional will help me understand same-sex relationships better and will pave way for my evolution. If I write an order after undergoing psycho-education, I trust that the words will fall from my heart,” he had said.

The court had also directed that the petitioners and their parents be referred to counsellor specialising with LGBTQIA+ individuals. The court had said that this move was vital since the court is moving into unchartered waters and a report from a specialist will provide support to this Court to move forward in this case. The bench wanted to refrain from just reading up on the issue and give a scholarly order since it would be hypocritical and would not reveal the judge’s true and honest feeling about the issue.

“To be open, I am also trying to break my own preconceived notions about this issue and I am in the process of evolving, and sincerely attempting to understand the feelings of the Petitioners and their parents thereafter, proceed to write a detailed Order on this issue,” the court had said.

Parents’ counselling reveals fear and shame 

After the counselling sessions with the petitioners and the parents, the psychologist opined that both petitioners perfectly understand the relationship they have entered into, and there is absolutely no confusion in their minds about the same. It was further observed that they have a lot of love and affection for their parents, and their only fear is that they may be coerced into separation. 

About the parents, it was observed that they were more concerned about the stigma attached to the relationship and the consequences that may have on their family. They were also concerned about the safety and security of their daughters. The court had then directed another session of counselling for the parents to see how far the earlier counselling has impacted the minds of the parents, and how far they are able to understand the relationship between the petitioners.

After the second session of counselling with the parents that took place on May 21, the psychologist’s report suggested that both sets of parents felt a great amount of shame, fear and social disdain due to the relationship, and were ready to let them live their lives out of a sense of hopelessness. They even expressed concerns over their daughters’ safety and future. One of the parents stated that their daughter’s happiness was fundamental to them and they are ready to accept them despite their differing opinions.

The court observed that there was no substantial change in the parents’ attitude but it was satisfied that it made all attempts to assuage their feelings. The court also appreciated the parents for willingly cooperating to undergo counselling, and to make an effort to understand the same-sex relationship of their respective daughters.

A Judge’s quest for authentic information to ensure compassionate justice

Justice Venkatesh’s session with the psychologist was also put down in a report which summarised that the session had an organic flow as the judge expressed that there was a lack of narratives on the issue, and laid out some misconceptions he had and came in with the awareness of his prejudices. A major part of the session addressed the problematic binary understanding of sex, gender and sexuality. He questioned how something that is so authentic forms an exceedingly small percentage in the society and why it is rather treated as a ‘new’ phenomenon. The counsellor reasoned that because of the stigmatised notions, any exposure to what lies beyond heteronormativity is limited.

During the session, the judge questioned his responsibility and purpose which helped him refrain from just stating that the petitioners are adults and hence have the right to choose the partners and pass the judgement then and there.

Justice Venkatesh felt the need to interact with members of LGBTQIA+ community to understand ground realities and thus spoke to Dr. L.Ramakrishnan, Vice President, SAATHII, Ms. Shanmathi, PCVC, as also Dr. Trinetra Haldar Gummaraju MBBS Intern – Kasturba Medical College and her mother Ms. Haima Haldar. Trinetra submitted a detailed report about her and her mother’s interaction with Justice Venkatesh, where she recounted her experience of being born as a male and coming out as a transgender woman. She recounted that Justice Venkatesh intently listened to the exchange of thoughts, acknowledging that there is a fundamental flaw in how entire generations including his own grew up believing in falsehoods, fully ignorant of their cisgender heterosexual privileges, woefully unaware of the pains and traumas faced by LGBTQIA+ individuals. 

He also acknowledged that listening to lived experiences was a powerful means of understanding the lives of queer individuals, and that the institutions of this country have absolutely no right to interfere in aspects of one’s identity which are but natural, and integral to their overall existence.

Justice Venkatesh considered these interactions to be additional psycho-educational sessions which cleared his misconceptions.

“This session ultimately convinced me that I must change all my preconceived notions and start looking at persons belonging to the LGBTQIA+ community as they are. I must frankly confess that the Petitioners, Ms. Vidya Dinakaran (the psychologist) and Dr. Trinetra became my gurus who helped me in this process of evolution and pulled me out of darkness (ignorance),” the order reads.

Why counselling was preferred

The court held that the present case gave it “not only an opportunity but also a vested responsibility to weigh the cause for inclusivity and justice against discrimination by heretofore social understanding of morality and notions of tradition”.

“I have no hesitation in accepting that I too belong to the majority of commoners who are yet to comprehend homosexuality completely. Ignorance is no justification for normalizing any form of discrimination. Therefore, I took upon myself, the vested responsibility and the duty to deliver justice in all its forms and spirit, of cutting across personal prejudices and notions and setting forth to, at the least, educate myself lest my ignorance interfere with in guiding homosexuality and the LGBTQIA+ community towards social justice,” the order states.

Justice Venkatesh believes that even if his endeavour inspires, informs and changes a small collective of persons in understanding and accepting the LGBTQIA+ community he will have achieved “delivering justice in its true spirit against discrimination and towards inclusivity”.

He stated that without understanding the issue the final outcome will only be half-baked and ineffective.

Seeds of a transformation sowed during Pride Month

Justice Venkatesh stated that he had never encountered anyone from the LGBTQIA+ community and the facts of this case led him to unknown territory. He admitted that he had at the best read or come across people talking about the LGBTQIA+ community, but not to an extent where it made a positive impact on him or influenced him.

“If I have to figuratively describe the change in my perspective from right at the start of the conversation and to the time it ended, the Petitioners described their love and companionship in exact terms of how two cis-heterosexuals, in my understanding would have addressed their relationship. Whatever they said sounded very natural and made me question myself as to where the conflict actually arises. This change happened within mere duration of 15 minutes,” he said in the order.

He recognised that the actual problem is not the fact that the law does not recognise a relationship, but that the sanction that is accorded by the society is not available. He recognised that a social awakening cannot happen overnight, but he believes that the judiciary and particularly the constitutional courts have a major role to play in spreading this awareness and awakening the society.

The court’s findings

“Till the legislature comes up with an enactment, the LGBTQIA+ community cannot be left in a vulnerable atmosphere where there is no guarantee for their protection and safety. This gap is now sought to be filled in by way of issuing guidelines till law takes over and guarantees safety and protection,” the court observed.

Legal rights: Equality for all

Article 14 of the Constitution embodies a guarantee that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The Constitution lays down particulars of the equality principle in the two succeeding provisions viz., Articles 15 & 16, which are a species of the genus contained in Article 14. Earlier, the word “sex” occurring in Article 15(1) was construed to mean: male and female. But the Supreme Court in NALSA v. UOI (2014) drew a distinction between sex and sexual orientation and held that “Each person’s self defined sexual orientation and gender identity is integral to their personality… and no one shall be forced to undergo medical procedures… as a requirement for legal recognition of their gender identity”.

The order goes into the genesis of Article 15 and its debate in the Constituent Assembly, where members called for the deletion of the word “only” from it and how it has been construed by the Supreme Court over the years. The court also ventured into international jurisprudence and put forth how South Africa specifically listed “sexual orientation” as one of the prohibited grounds of discrimination; while in UK, the House of Lords upheld the judgment of the Court of Appeal holding that discrimination based on sexual orientation was unacceptable.

The court cited the Supreme Court’s judgement in Navtej Singh case where it was inter alia, held that under Article 15 (1) the word “sex” is not merely restricted to the biological attributes of the individual but also their “sexual identity and character” as well as “sexual orientation”.

“After the decision in Navtej Singh Johar (cited supra), it is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners… That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof. This right and the manner of its exercise are constitutionally protected under Article  21 of the Constitution,” the court held.

The court concluded that time-worn aids of literal and pedantic construction which plagued the early jurisprudence of Article 15 of the Constitution no longer holds sway today.

“The “grounds” enumerated in Article 15 of the Constitution are not water-tight compartments to be viewed divorced from discrimination which is the sheet anchor of the provision. The grounds are merely instruments to find and eliminate discrimination and are, therefore, a means to an end. Discrimination is not a self-referencing concept. A meaningful attempt to identify and eliminate discrimination must necessarily involve the identification and protection of the constitutional values of personal autonomy, dignity, liberty and privacy,” the court observed.

The court gave some directions expecting the authorities to implement the guidelines in letter and spirit not for the sake of complying with a judicial fiat but to ensure that this society evolves, and the LGBTQIA+ community is not pushed out of the mainstream of the society. 

This landmark ruling could not have come at a better time than in June which is celebrated world-wide as the Pride Month!

The complete judgement may be read here:

Related:

Allahabad HC reinstates LGBTQIA member as Home Guard, deems cancellation order ‘vindictive’
Enable Transgender Community to apply for Constable Post: Patna High Court
I am not fully ‘woke’: Madras HC judge to start psychology sessions to understand same sex relationships

The post When a judge allows himself to be counselled, justice can mean a transformation appeared first on SabrangIndia.