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Indian government argues against marriage equality

Landmark Supreme Court oral arguments to end on May 10

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The Indian Supreme Court (Photo by TK Kurikawa via Bigstock)

While India’s national capital, New Delhi, was facing a heat wave on April 26, oral arguments in a case that could extend marriage rights to same-sex couples resumed in the country’s Supreme Court.

Solicitor General Tushar Mehta argued on behalf of the Indian government.

“This court is dealing with a very complex subject having a profound social impact,” said Mehta, who is the country’s second-highest legal official. “All the questions in this case must be left to the Parliament.”

Mehta, while arguing before a 5-judge panel headed by Chief Justice Dhananjaya Yeshwant Chandrachud, said the court in Navtej Singh Johar v. Union of India recognized the right to one’s sexual orientation. Mehta further said the real question is who will determine what constitutes marriage and between who.

Navtej Singh Johar v. Union of India was the historic Supreme Court ruling that decriminalized homosexuality in the country in 2018.

Mehta, while arguing for the government, said there would be several unintended consequences for several laws is the Supreme Court rules in favor of marriage equality. He argued Parliament and civil society groups would need to debate the issue.

Mehta said that there is no stigma and legislative policy is clear in the Transgenders Act, where it is widely defined to include all genders. Mehta appealed to the Supreme Court to leave the matter of marriage equality to Parliament and argued the court may not be in a position to address the multiple situations that will arise because of adjudication.

“If they (LGBTQ) have a right how will it be regulated?,” asked Mehta. There are several shades of the spectrum. It is not just gays, lesbians, etc.”

Mehta also spoke about different genders. 

He argued that if LGBTQ people are given recognition, that is unidentified, it may not correspond with Indian laws and it would be impossible to reconcile through a judgment. Mehta also referenced the Dobbs v. Jackson Women’s Health Organization ruling in the U.S. that struck down the Roe v. Wade decision, but Chandrachud said the American Supreme Court ruling that determined a woman has no autonomy over her own body was the wrong judgment.

“We credit ourselves that we have gone far ahead than these, especially Dobbs v. Jackson Women’s Health Organization,” said Chandrachud. “For socially complex issues, leave it to the legislature, that point is well taken.”

Mehta argued India’s Special Marriage Act is for regulating interfaith and inter-caste marriages, but the law was always intended for heterosexual couples and not for same sex couples. 

Justice Shripathi Ravindra Bhat immediately intervened and asked Mehta whether there was a marriage equality law anywhere in the world. He further said that perhaps there was no foundation for such a marriage to be recognized by law in 1956.

Mehta replied there was neither permissive nor prohibitive operation of law in India until 1956. Mehta on the hearing’s sixth day gave a bizarre example to support his argument. 

He asked the court to imagine a situation of incest. Chandrachud argued the example is far-fetched and sexual orientation, and autonomy cannot be exercised in all aspects of marriage.

“It cannot be argued that sexual orientation is so strong that incest be allowed,” said Chandrachud.

Mehta also argued that extending marriage rights to same-sex couples would impact other laws that specifically address heterosexual marriages. He said that issues would arise across the country, and further highlighted it would be difficult to determine who the wife would be in a lesbian marriage and how she would receive rights — spousal support if she has no financial means to support herself and alimony in the case of divorce.

Justice Pamidighantam Sri Narasimha agreed and said it would be an impossible thing to do.

Chandrachud, while hearing Mehta’s argument, noted three points that Mehta was trying to highlight: Adjudication would require substantial rewriting of Indian law, judicial interference in public policy and interference in personal law. The court cannot avoid the interplay between the Special Marriage Act and personal law. 

Personal laws in India regulate marriage, divorce and child adoption for different religions. Hindus under personal laws have the Hindus Marriage Act of 1955, Muslims have the Muslim Personal Law (Shariat) Application Act of 1937, and Christians have the Indian Christian Marriage Act of 1872.

The Supreme Court also noted that extending marriage rights to same-sex couples falls under Parliament’s domain, but the court’s goal is to ensure ways to grant legal rights, social and other benefits to same sex couples without the label of marriage.

Mehta during Wednesday’s hearing shocked the country when he said the government is ready to address marriage rights for same-sex couples by forming a committee that a Cabinet secretary will head.

“(The) issue was some genuine human concerns, and discussion was if something can be done administratively,” said Mehta.

Chandrachud quickly suggested that Attorney General R. Venkataraman and Mehta should meet with the plaintiffs’ lawyers to frame the issue.

“The conceptual domain requires legislative changes, and it is completely beyond our domain,” said Chandrachud. “So we have to see how we frame the conceptual doctrine. Somethings can be done administratively, something can be changed by subordinate legislation, and the third is recognition for the same sex marriage. So we are saying we will decide this issue as a concept, but the govt taking one step forward will be to recognize the cohabitation of same sex couples, which will be a big step.”

Venkataramani began his arguments before the Supreme Court once Mehta concluded.

Venkataramani said that Special Marriage Act is only a law about the institution of marriage and does not create the institution of marriage itself, and that is why it is not discriminatory legislation. Lawyer Rakesh Dwivedi argued on behalf of one of the litigants who opposes marriage equality, and questioned whether there is a fundamental right to marriage in India.

“Is there fundamental right to recognition of marriage?,” asked Dwivedi, while arguing against marriage equality. “Is there a fundamental right to equality in the marriage of heterosexuals? can this be made permissible by the variety of amendments?”

Bhat asked Dwivedi whether the word spouse diminishes the meaning of husband and wife.

“We say I take you as a husband and take you as a wife,” said Dwivedi. “How can we say I take you as my spouse.”

Dwivedi also argued that the case requires social accommodation, and Parliament is in the position to decide how to take the step, when to take it and what lays ahead. He argued that India’s social fabric would break apart if the Supreme Court rules in favor of marriage equality.

Homosexuality is ‘offensive’ to Indian values

A group of former judges, former Indian Police Services officers, and former bureaucrats wrote an open letter to Indian President Droupadi Murmu. They asked her to intervene in order to “save” Indian cultural traditions, religious tenets and social values.

“If we revise the law to make same-sex union rational, acceptable, or moral, it will open the doors to same-sex culture. Our society and culture do not accept same-sex behavioral institution because it is offensive to our values, besides being irrational and unnatural,” the letter reads. “It is widely appreciated that same-sex relationship cannot create long-term or stable institutions; and if they are allowed to adopt children, they cannot maintain stable and long-lasting relationships with their families, parents, relatives and partners. The health and future of such children will be severely compromised.”

The Supreme Court Bar Association in an April 28 resolution said it was highly inappropriate of the Bar Council of India to oppose the marriage equality hearing, because the Supreme Court has the right to decide whether it should adjudicate the issue or leave it to Parliament.

The Washington Blade on April 24 reported that the Bar Council of India, a statutory body that regulates legal practices and education in the country, held a joint meeting with all of the country’s state Bar Councils and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court leave the issue of marriage equality for legislative consideration.

The Supreme Court will resume hearing on May 10 for final arguments from Mehta and additional considerations from the plaintiffs.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion

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India

Narendra Modi to form coalition government after party wins India election

LGBTQ issues largely absent from campaign

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Indian Prime Minister Narendra Modi. (Photo by shganti777/Bigstock)

In a vibrant democracy like India, the anticipation surrounding election results is always palpable.

On Tuesday, the stakes were incredibly high, especially for the LGBTQ community. The air was thick with suspense, and social media platforms buzzed with the anxiety and hopes of millions. As the night wore on, discussions flourished, emotions ran high, and the country collectively held its breath. The results, which trickled in at their own unhurried pace, promised to shape the future landscape of India’s social and political climate.

The Election Commission on Tuesday announced the much-awaited results.

The Bharatiya Janata Party, led by its charismatic leaders, not only retained power but also strengthened its position with a clear majority. With 293 seats, the coalition comfortably surpassed the majority mark, ensuring a third consecutive term for Prime Minister Narendra Modi.

Despite supporters’ hopes and high expectations for a resounding victory, the election results did not fully meet their aspirations. This sense of disappointment was palpable, especially considering the extensive campaigns and efforts made ahead the elections.

All the regional and national parties came together, forming the formidable Indian National Developmental Inclusive Alliance to challenge the Modi-led National Democratic Alliance. This INDIA alliance, a vibrant coalition of 34 parties, stood united, mostly in opposition to Modi’s policies and leadership.

The BJP has recently articulated its position on LGBTQ rights in India.

The government’s opposition to marriage equality in the Supreme Court highlighted their stance against nuptials for same-sex couples. By acknowledging the commitment made by the Supreme Court on issues faced by the LGBTQ community, however, the government did establish a dedicated committee to address them.

This committee, formed in April and chaired by Cabinet Secretary Rajiv Gauba, aims to address critical concerns that include healthcare access, pension entitlements, and property rights for LGBTQ people.

The inclusion of secretaries from various key ministries signifies a comprehensive approach to addressing these multifaceted challenges. The committee’s creation also underscores the government’s recognition of the LGBTQ community’s unique needs and its commitment to ensuring their rights and well-being are systematically addressed.

Despite their alliance, the opposition parties approached the election with individual manifestos rather than a unified platform. This disjointed strategy meant that only two of the 34 parties made explicit commitments to the LGBTQ community.

The Indian National Congress, one of the major opposition parties, promised to introduce a bill that would recognize LGBTQ couples’ civil unions. The Communist Party of India (Marxist) also pledged to enact pro-LGBTQ laws and underscored the need for legislative measures to protect and promote the rights of LGBTQ people.

The LGBTQ community throughout the election campaign found itself largely overlooked in the opposition parties’ public discourse. LGBTQ rights were conspicuously absent from Indian National Congress leaders’ campaign speeches, despite the promises they made in their platforms.

Rahul Gandhi, the prominent Indian National Congress figurehead, failed to address LGBTQ rights in his speeches, even in Uttar Pradesh and other states with significant LGBTQ populations.

Twenty-eight percent of India’s transgender population lives in Uttar Pradesh. The state, along with others with substantial LGBTQ communities, saw no mention of issues that are critically important to them during Gandhi’s rallies and public speeches.

This disconnect between the promises made in manifestos and the topics discussed on the campaign trail underscores a broader issue within political campaigning, where marginalized communities often struggle to find a voice. Despite the written commitments to LGBTQ rights, the lack of vocal support during the campaign highlights the ongoing challenges in bringing these important issues to the forefront of political debate.

Several independent LGBTQ candidates, in a remarkable display of political participation, entered the fray during election campaign. They include Sunaina Kinner, a trans woman who ran for office in Jharkand state’s Dhanbad constituency.

Kinner faced considerable challenges and lost the election.

She received 3,462 votes, a modest number in the face of entrenched political dynamics. The NOTA (None of the Above) option received 7,354 votes in Kinner’s constituency, indicating a substantial number of voters were dissatisfied with all available candidates.

The BJP’s election manifesto reflected a limited focus on the broader LGBTQ community, opting instead to highlight specific initiatives for trans people. The party has promised to improve healthcare access for them.

By promising to include trans people in health programs and offer free health insurance coverage through the prime minister’s Ayushman Bharat Scheme, the BJP aims to provide essential medical support and financial protection. This initiative could potentially improve healthcare outcomes for many trans people, ensuring they receive the necessary medical attention without the burden of financial constraints.

The brevity of the party’s mention of trans issues and the absence of broader LGBTQ legislation, however, indicates the party’s stance on LGBTQ issues.

After a key meeting of the NDA on Wednesday that the BJP led, Modi was elected party leader and will submit to President Droupadi Murmu on Friday a formal request to form the government for the third consecutive time. The INDIA alliance will sit in opposition.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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Indian government creates committee to study rights for same-sex couples

Country’s Supreme Court last October ruled against marriage equality

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(Photo by Rahul Sapra via Bigstock)

The Indian Supreme Court seven months ago declined to grant legal status to same-sex marriages. 

At the time of the verdict, however, the Supreme Court instructed the federal government to establish a committee to address the myriad issues faced by the LGBTQ community in India. These include matters such as pensions, joint property ownership, healthcare access, and child custody.

In compliance with the Supreme Court’s directive, the Indian government on April 16 established a committee with Cabinet Secretary Rajiv Gauba appointed as its chair. The committee, consisting of six members, will include secretaries from the Home Affairs, Women and Child Development, Health and Family Welfare, Social Justice and Empowerment, and the Law Ministries.

“The Hon’ble Supreme Court vide its judgment dated 17.10.2023, in Writ Petition No. 1011/2022 Supriyo@Supriya vs. Union of India, has directed the central government to constitute a committee to be chaired by the Cabinet secretary to examine the various issues relating to queer community,” said the gazette notification.

A 5-judge constitutional bench led by Chief Justice Dhananjaya Yeshwant Chandrachud refused to recognize the right to marry as a fundamental right for same-sex couples. The country’s top court stated, while delivering the verdict last year, that parliament must decide whether to extend marriage rights to same-sex couples.

The Supreme Court acknowledged it cannot make laws but can only interpret them. It also recognized queer people cannot be discriminated against. The court had said that the material benefits and services given to heterosexual couples and denied to queer couples violate their fundamental rights. 

Chandrachud and Justice Sanjay Kishan Kaul in their dissenting opinion advocated for civil unions instead of marriage, arguing this approach would grant legal rights to same-sex couples without extending full marriage rights. They emphasized that while marriage may not inherently confer rights, it offers certain “intangible benefits in the form of expressive advantages” and provides a “bouquet of rights” for couples to exercise.

“For the right to have real meaning, the State must recognize a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognize such entitlements would result in systemic discrimination against queer couples,” said Chandrachud. 

Solicitor General Tushar Mehta, the country’s second-highest law officer, at the time had stated a committee chaired by the Cabinet secretary would be formed to delineate the rights that should be available to LGBTQ couples in a union.

The Supreme Court had outlined several entitlements for the LGBTQ community that include the right for queer partners to be treated as part of the same family for ration card purposes, the ability to set up a joint bank account, jail visitation rights, recognition as “next of kin” by medical practitioners, and the right to access the body of a deceased partner to arrange the last rites.

“The committee shall set out the scope of the benefits which accrue to such couples,” stated the Supreme Court in its 2023 ruling. 

In last year’s judgment, the Supreme Court said “legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.” 

The Income Tax Act 1961, provides some benefits to married couple in India, such as a maximum deduction of 199,654.44 ($2,400) that can be claimed in a financial year. Married couples can opt for a joint home loan with tax benefits on interest paid and principal repaid, and also get a higher loan amount. These financial benefits, however, are not available for LGBTQ couples in the country. Similarly, as per the rule of family pension in India, if a deceased government servant or pensioner is survived by a spouse, they will be the first to receive a family pension. Children and other family members become eligible for it only after the spouse of the decedent or pensioner become ineligible for a family pension or dies.

Activists say the establishment of a committee chaired by the Cabinet secretary to address the issues faced by LGBTQ couples in a union is a promising step forward. 

“The Supreme Court’s  verdict on October 17 last year marked a significant milestone in recognizing the rights of LGBTQ individuals, and this committee could play a crucial role in translating legal recognition into practical and effective policy changes,” said Souvik Saha, an LGBTQ activist and founder of People for Change. “The formation of this committee is particularly important in a state like Jharkhand, where LGBTQ individuals face unique challenges. According to the National Human Rights Commission (NHRC), LGBTQ people in India, especially in rural areas, continue to face significant stigma and discrimination. In Jharkhand, these challenges are compounded by socio-economic factors and a lack of awareness and acceptance among the general population.”

He also said this committee’s effectiveness will depend on its ability to engage with LGBTQ communities, understand their needs, and implement policies that are both inclusive and practical. 

“As someone working on the ground, I would emphasize the importance of including voices from all parts of the LGBTQ spectrum, particularly those from marginalized communities,” Saha said.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India, and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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Indian election heats up

Transgender issues are among those being discussed

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Barkha Trehan (Photo courtesy of Barkha Trehan)

Amid heatwaves in the Indian capital of New Delhi, the world’s biggest election is raising the temperature even higher.

The temperature in the Indian capital on the morning of April 18 reached 107 degrees, and the sun blazed like a furnace. In the political corridors, however, the sweat wasn’t just from the heat, but from the fervent preparation for and in anticipation of the election results.

The Bharatiya Janata Party, the current ruling party, aggressively prepared for the 2024 general election months ago but the other regional and national parties still seem to be preparing while the election has started in the country. 

The Washington Blade traveled to New Delhi and witnessed the political party’s campaign and preparations. 

Home Minister Amit Shah, representing the BJP, was aggressively campaigning in Ahmedabad and Gandhinagar in Gujarat state. BJP National President Jagat Prakash Nadda was campaigning in Assam state.

The Blade interviewed Barkha Trehan, a political activist in New Delhi. She said that while various political parties in India address transgender and women’s issues in their campaign rhetoric, the Indian National Congress fails to translate its promises into action at the grassroots level.

“Political parties, especially the Congress party in the country, have talked and written enough in their election manifesto, but in last many years they have done nothing,” Barkha told the Blade. “In the last 10 years, we have seen that whatever Bharatiya Janata Party (BJP) says or has written in their election manifesto, we have seen that work done on the ground level. Let’s say it is a women’s issue or transgender community issue, or any other issues like infrastructure issues, everything is visible.”

Barkha said that discussing an issue and taking tangible action on it are distinct endeavors. 

She emphasized the BJP’s efforts at the grassroots level, whether concerning trans issues or other matters, deserve recognition. The BJP, according to her, has undertaken numerous initiatives for the trans community that skill development programs and providing loans for startups.

“BJP wants to work for all without any discrimination,” Barkha told the Blade. “They want to create a good image of our country in the world, but the Congress party always pulls down the fame. They always go abroad and discredit the country by talking negative all the time. They think this is the only way to win election in India, but this won’t work out for them.”

Talking about trans issues, Barkha said Prime Minister Narendra Modi has met people from the trans community. She told the Blade that he is trying to motivate the trans community to take advantage of employment opportunities. 

“Before Modi, nobody used to look at the transgender community,” said Barkha. “No one used to talk about them. When the prime minister’s video went viral on the internet and television while he had a conversation with the transgender community, other people started and felt inspired to work for the transgender community and talk to them.” 

indian prime minister narendra modi speaks with a transgender business owner

Barkha told the Blade these things send a message to the trans community that there are people who are listening and who will always stand by it. 

She noted the trans community has always faced discrimination, neglect, and abuse in India. This political outreach, according to Barkha, sends a strong message that the trans community is as important as anyone else, they have the same value as any other citizens in the country, and they deserve a better life. She told the Blade trans people can make money when they can learn new skills, and they will have self-confidence and self-respect when they can earn a living.

Discrimination based on gender identity remains commonplace in India

India’s trans community has suffered discrimination for many years.

An openDemocracy report notes 80 percent of trans Indians are either engaged in sex work or begging. India in 2019 passed a law, Transgender Persons (Protection of Rights) Act, with aims to protect the rights of trans people, their welfare, and matters connected therewith and incidental thereto. 

The Indian government and BJP in 2022 came up with a socialist scheme for trans people. Support for Marginalized Individuals for Livelihood and Enterprise is a program to support trans people who are engaged in begging. It provides them access to medical facilities, counseling, education, skill development, and economic linkages with the support of state governments and local urban bodies along with volunteer and community-based organizations. 

The Congress in Telangana state was recently accused of disrespecting the trans community when Revanth Reddy, the Congress party’s sitting chief minister, sent anti-trans slurs that targeted the state’s opposition party.

The Blade reached out to the Congress party’s office in New Delhi, but it denied the interview request.

BJP’s position on LGBTQ issues questioned

The Blade while in New Delhi also visited the Aam Aadmi Party’s headquarters.

Despite the scorching sun overhead, Delhi residents sought refuge from the sweltering temperatures. The Blade, amid the election fervor and campaign hustle, interviewed Aam Aadmi Party spokesperson Preeti Sharma Menon. She said the BJP is regressive and seeks to intrude into a person’s bedroom, dietary choices, and other aspects of their personal lives.

“If BJP comes back to power, the party will keep doing what it is doing now, not supporting LGBTQ rights,” said Menon. “I think, there is no doubt in the LGBTQ community that one cannot have BJP in power and live safely. If we want to give equal rights to every citizen of this country, then only the Indian National Developmental Inclusive Alliance is the only chance.”

She said the Aam Aadmi Party always tries to give LGBTQ people a chance, but the party in this general election has few seats (in parliament) for which to fight because it is part of the opposition alliance.

“We always think if you want the change, the LGBTQ community must have a representation in the parliament,” said Menon. “So, we always try to make LGBTQ community in the country politically active.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

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