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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 penal code reform bills do not include LGBTQ, intersex rights

Supreme Court earlier this year heard marriage equality cases

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(Photo by Rahul Sapra via Bigstock)

Indian Prime Minister Narendra Modi in 2019 said that all the laws implemented during British rule should be made in accordance with modern norms and with society’s interests in account after adequate discussion and consideration. The government this year introduced a bill that would amend India’s criminal laws, but the measure is not inclusive.

Home Minister Amit Shah on Aug. 11 introduced the Bharatiya Nyaya Sanhita Bill 2023, Bharatiya Nagarik Suraksha Sanhita Bill 2023 and Bharatiya Sakhshya Bill 2023 in the Lok Sabha, the lower house of the Indian Parliament. The three bills would replace the Indian Penal Code of 1860, the Criminal Procedure Code of 1898 and the Indian Evidence Act of 1872.

Shah said while introducing the bill that these three laws strengthened and protected British rule, and their purpose was to punish, not to give justice.

“The soul of three new laws will be to protect all the rights given to Indian citizens by the constitution, and their purpose will not be to punish but give justice,” said Shah. “These three laws made with Indian thought process will bring a huge change in our criminal justice system.”

Shah, while introducing the bill, also said that the government has taken a very principled decision to bring citizens to the center, instead of governance. These laws, however, still fail to be inclusive. 

Chapter Five of the proposed revision to the penal code, which deals with offenses against women and children, did not talk about people who do not fall under specified categories, leaving out LGBTQ and intersex rights.

Section 63 of the code still defines rape as sexual assault by a man against a woman and continues to preserve gender stereotypes. The definition fails to recognize sexual assault by a man against another man or by a woman against another woman.

Another concerning section of the proposed criminal code, Section 38, would extend the right to private defense of the body to voluntarily causing the death of or any other harm to an assailant if an assault is with the intention of gratifying “unnatural lust.” The code does not define “unnatural lust” though it is very similar to now abolished Section 377 that criminalized consensual same-sex sexual relations.

The Supreme Court in 2018 decriminalized homosexuality in India, thus repealing Section 377. 

The British first introduced Section 377 and it was modelled on the Buggery Act of 1533. Thomas Macaulay in 1838 wrote the colonial-era law and it came into force in 1860. The Buggery Act defined buggery as an unnatural sexual activity against the will of God and man. 

Section 377 of the Indian Penal Code defines unnatural offenses as whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

Even though Section 377 has been repealed, the new criminal laws do not include the LGBTQ and intersex community under the same legal protection that is available to others. The new bill fails to mention LGBTQ and intersex people, leaving out any protection against violent crime. 

There are no official statistics available on crimes against LGBTQ and intersex people, including those based on sexual orientation or gender identity, in India.

“The language of the new laws has undergone substantial positive changes to further include the LGBTQ community. After the passage of the Transgender Persons (Protection of Rights) Act 2019, the proposed new criminal laws also have gender-inclusive language,” said Krishna Deva Rao, vice chancellor of the National Academy of Legal Studies and Research in Telangana state. “For instance, the meaning of the term ‘gender’ has been expanded as section 2(9) of Bharatiya Nyaya Sanhita (the law to replace the existing Indian Penal Code 1860) now defines ‘gender’ as the pronoun ‘he’ and its derivatives are used of any person, whether male, female or transgender. The penal law in Bharatiya Nyaya Sanhita has also formally removed the controversial provision Section 377 from the IPC.”

Rao said that the government should have done a better job of further addressing the discriminatory treatment meted out to such marginalized communities. 

In an email to the Washington Blade, Rao said that despite the Supreme Court’s landmark NALSA verdict in 2014, the government has yet to provide horizontal reservations to the transgender community.

“Despite the passage of the Transgender Persons Act 2019, the concerns of the community remain unredressed as the penalties provided therein are very low. Similarly, despite the 2014 Supreme Court verdict providing for self-determination of gender identity without having to undergo surgical intervention, the 2019 Act and related rules are interpreted in a way to mandate surgery,” said Rao. “Recently, in August 2023 Hyderabad police came under heavy scrutiny for cracking down on a begging racket. The police personnel discriminated against members of the transgender community because they had not undergone surgery or had genitalia not corresponding to their identified gender.”

In a statement made about Chapter Five of the newly proposed Bharatiya Nyaya Sanhita Act, Rao said that the law catered to address crimes against women and children. Rao added it should have been expanded to include the LGBTQ and intersex community as well.

“While Section 377 has been struck down from the IPC, as per the landmark Navtej Singh Johar decision by the Supreme Court of India in 2018 the provision was only partially read down to exclude consensual homosexual relationships. By removing the provision entirely, non-consensual or illegal acts of intercourse against men as well as transgender community are left completely unaddressed by the new penal law,” said Rao. “The arrest and medical examination safeguards under the criminal procedure have been exclusively catered to the protection of women. For instance, women survivors of sexual abuse have to be medically examined in a prescribed way, women can’t be arrested after sunset and before sunrise, etc. Such procedures should also be extended to people from the LGBTQ community. Similarly, when transgender persons have to be examined, they should be allowed to provide their written consent for the gender of the doctor.”

Two Supreme Court judges in their 2014 NALSA vs. Union of India ruling said that trans people fall within the purview of the Indian constitution and thus are fully entitled to the rights guaranteed therein. 

“In a country which once considered us to be a ‘minuscule populace’, the LGBTQIA+ community has been overlooked as a demographic group to be considered during any revelations of the constitution,” said Ankana Dey of Sappho for Equality, an activist forum for lesbian, bisexual woman and trans men. “In research in 2018, the LGBTQIA+ group was one of the 12 groups in India that was least represented in any research or legislative amendments. In context to the Bharatiya Nyaya Sanhita bill, it is no different for us. However, the LGBTQIA+ movement will continue to fight for its rights and representation in legal reforms. LGBTQIA+ activists and groups will continue to navigate the laws and policies in order to bring relief of some form to the community and will continue spreading that information with a bottoms-up approach.”  

In an email to the Blade, Dey said that every time Sappho for Equality’s team is in the field, they work along the lines of advocacy and try to strike a dialogue with the legal representatives of the state such as police, lawyers and paralegal workers.

“Through these dialogues, we understood that the laws which have been passed and have not been circulated enough within the networks of legal representatives. Most of the lawyers in our state are unaware of what constitutes the NALSA judgment, The Transgender Persons Protection of Rights Act and Bill, and even the Mental Healthcare Act. The State Legal Services Authority (SALSA) categorically mentions that any person from the LGBTQIA+ community who has faced violence and discrimination has the right to free legal services from the state,” said Dey. “Albeit most of the community persons are not aware of this service and even if they are, money extortion and intimidation are grave concerns that make these services severely inaccessible. Some of these dialogues have translated into heated conversations since most lawmakers do not enjoy being told that their knowledge lacks constructive information and their work generally surrounds misinformation, stigma, and stereotypes associated with us. Despite this, we are hellbent on continuing our fight to counter the legalities that affect us negatively. We are intently striving towards working with lawyers at a regional level and sensitizing them about queer-trans* lives and liveabilities.”

Dey said that most of these bills that would specifically address trans lives have not been implemented since the NALSA ruling in 2014. She said there is a severe lack of implementation of these laws at the grassroots level.

“We strongly believe that with the revised IPC that deals with offenses against women and children, there is an urgent need to expand the very definition of a ‘woman,'” said Dey.

While talking to the Blade, Harish Iyer, an equal rights activist, said he hopes that the actual draft will be more inclusive for all genders and sexualities.

“I think culture is not static, culture is evolutionary. Our laws also have evolved from time to time. We have made more progressive laws. With gender and sexuality, I would hope that the changes in laws would be more inclusive for all citizens of India,” said Iyer. “It is an Indian culture to accept different sexuality. British culture was Section 377 of IPC. If we are going to define the law that is not IPC, it becomes imperative for us to follow Indian culture. We have always accepted and respected LGBTQI+ people.”

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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LGBTQ, intersex Indians hope marriage equality will spur family acceptance

Familial rejection has spurred same-sex couples to die by suicide

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People for Change founder Souvik Saha. (Photo courtesy of Saha)

As LGBTQ and intersex Indians continue to eagerly await a ruling from the country’s Supreme Court on whether same-sex couples can legally marry; they must still confront a lack of acceptance from their families and from society-at-large.

A lesbian couple in Gujarat state in January 2018 died by suicide when they jumped into a river. They left a chilling suicide note behind.

“We have left this world to live with each other,” the note left by Asha and Bhavna Thakor read. “The world did not allow us to stay together. We did not have any men with us. This world did not allow us to stay together. When will we meet again? When will we meet … perhaps in the next birth we will meet again.”

Another chilling incident took place in West Bengal state in 2011. 

A lesbian couple, Swapna Mondol and Sujata Mondol was found dead in a rice paddy near a village. After two years together, villagers found out about their love for each other and ordered the girls to stay away from each other. Their families also tried to separate them. 

Sujata Mondol’s parents married her off to an engineer, but she stayed in contact with Swapna Mondol. A local police report notes the couple took poison when they met again after Sujata Mondol’s husband left. 

Souvik Saha, an LGBTQ activist and founder of People for Change, told the Washington Blade that marriage equality can influence families to be more accepting, but some of them may still struggle.

“Support networks and resources for families to understand and embrace their LGBTQ+ members will continue to be essential,” said Saha “Extend outreach efforts to regions where acceptance might be slower to come. Collaborate with local organizations, community leaders and activists to foster understanding and acceptance.”

Saha talked about the pending Supreme Court’s marriage equality ruling and said a decision in favor of marriage rights for same-sex couples would mark a significant milestone in the fight for LGBTQ and intersex rights in the country. Saha added there are several important next steps to consider.

“Even after a positive verdict, there might still be misconceptions and lack of awareness about LGBTQ rights. Continue to conduct awareness campaigns, workshops and seminars to educate the public about the implications of the verdict and the broader LGBTQ rights movement,” said Saha. “Strengthen support systems for LGBTQ individuals, especially those who might face backlash or discrimination from their families or communities. Offer counseling, mental health services and safe spaces to help individuals navigate challenges that might arise post-verdict.”

Saha told the Blade that cultural sensitivity in the country needs to be taken into account if the Supreme Court rules in favor of marriage equality. He said monitoring the verdict’s implementation and its impact on the ground is essential.

“Holding institutions accountable for any failures in upholding the rights granted by the verdict,” said Saha. “Provide legal assistance to LGBTQ couples who may face challenges related to documentation, inheritance rights and other legal aspects that might arise due to the new legal status of their marriages.”

Shyam Konnur, managing director of Pune-based Mist LGBTQ Foundation, agreed the marriage equality ruling will have a big impact in India. 

Konnur said the decision would open more doors, build hope within the community and encourage more queer people to be free, which in turn, would help in creating more awareness and allow NGOs to do more in terms of creating a safer environment for LGBTQ and intersex Indians. Konnur, however, said it is not enough.

“I believe that marriage equality is just the start,” said Konnur. “The LGBTQ community in India doesn’t have any rights that other citizens enjoy. Whether or not the marriage equality case is in our favor, I believe we need to fight for non-discriminatory laws for the LGBTQ community. Every day we hear about a case where an LGBTQ person is denied of something just because they belong to the community.”

Konnur noted India’s LGBTQ and intersex community fights discrimination based on their gender expression every day in terms of how they dress, and pointed out legal assistance remains out of reach for most of them. The lack of mental health support tailored to queer people, along with navigating the country’s health care system and finding a gender-neutral restroom they can use without harassment are additional hurdles. 

Ankush Kumar is a freelance 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 court seeks advice to make police more responsive to LGBTQ people

Country awaiting historic marriage equality ruling

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Bombay High Court (Photo by saiko3p/Bigstock)

India in its post-independence constitution promised “equality” to every citizen. The country’s Supreme Court in 2018 decriminalized consensual same-sex sexual relations, but it still has a long way to go. 

The Bombay High Court, the highest court in Maharastra state, on Aug. 11 called for suggestions on how to make police officers more sensitive to the LGBTQ and intersex community. A division bench at the Bombay High Court was hearing a petition that a same-sex couple who requested police protection from their family filed.

The court asked for responses from the Mumbai police and prison authorities on how an amendment could be made to the Maharashtra Police Manual to sensitize cops in dealing with LGBTQ people.

“If two individuals want to live together, the police cannot interfere with them. Constitutional morality has to prevail over collective morality,” said Vijay Hiremath, a lawyer who was appearing for the petitioners.

Even though the Supreme Court ruled there should not be any discrimination against LGBTQ and  intersex people in 2018, the community still faces social discrimination and harassment around the country. Four LGBTQ people in 2022 filed a police complaint against the police in Tripura state after they faced harassment and were detained for the entire night.

R Nazriya, a transgender police officer, in May claimed she faced harassment at work, even though an inquiry against her alleged harasser had begun. Sanjit Mondal, a gay man, in July 2020 claimed two civic police volunteers on motorbikes harassed him while he was returning home from visiting a friend in Kolkata, the capital of West Bengal state.

The Madras High Court, the highest court in the Tamil Nadu state, last year directed the state police to refrain from harassing LGBTQ and intersex activists, NGOs and community members. The court ordered a specific clause need to be added to the Police Conduct Rules, which punish officers who harass the members of the LGBTQ and intersex community, NGO employees and activists.

Following the Madras High Court ruling, the Tamil Nadu government introduced an amendment to the Tamil Nadu Subordinate Police Officers’ Conduct Rules and made harassment of LGBTQ and intersex individuals by the state police a punishable offense.

Hiremath told the Bombay High Court on Aug. 11 that Tamil Nadu prisons were conducting sensitization programs after the Madras High Court issued a directive.

The Bombay High Court’s division bench noted the plaintiffs’ documents were not only about police sensitization, but also included prison.

“[The] jail manual should be changed, keeping the LGBTQIA community in mind,” said Jaya, the general manager for Sahodaran, an NGO focusing on spreading awareness on sexual healthcare, mental well-being and helping people come out easily. “We need to sensitize police about LGBTQ community.”

While talking to the Washington Blade, Dinesh Chopade, associate advocacy director at Humsafar Trust, a Mumbai-based NGO that works to promote LGBTQ and intersex rights, reacted to the Bombay High Court’s ruling and said it’s a welcoming step, but the 2018 decriminalization judgment also mentioned that government authorities should be more responsive to LGBTQ and intersex issues.

“One of the recommendations of the Supreme Court was to sensitize government authorities on the LGBTQ community. This is the direction, the Supreme Court had given to the center and the state government, but unfortunately, none of the states have taken the initiative,” said Dinesh. “We have taken the responsibility as a community-based organization, and we conduct sensitization training in police training academies. We have conducted training in Delhi, Nashik and Mumbai.”

Chopade further said his organization is not waiting for government or any court orders to sensitize police across the country on LGBTQ and intersex issues. Chopade also said the Bombay High Court order would certainly create an impact and put pressure on government authorities to take this on a priority basis.

The Bombay High Court has directed the Inspector General (of Prisons) to be made a defendant in the petition.

Anjali Gopalan, a representative of Nirangal, an NGO based in Tamil Nadu that focuses on changing the social status and discrimination against people from all sexual minorities, genders, and sex workers in the state, told the Blade it is a good move to remove any discrimination that exists against the LGBTQ and intersex community.

“People from the community don’t have the same rights as all other citizens of the country,” said Gopalan. “Government authorities, health care workers, teachers including police should be sensitized. Sensitization is critical.”

Ankush Kumar is a freelance 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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