It is Time for the Indian Government to Come up With a Comprehensive Equality Act
The Supreme Court's recent decision denying legal recognition to queer marriages represents a significant setback for LGBTQIA+ rights in the country. This verdict, delivered by a constitution bench, featured four separate judgments written by Chief Justice of India (CJI) D.Y. Chandrachud, Justice S.K. Kaul, Justice Ravindra Bhat, and Justice P.S. Narasimha, with Justice Hima Kohli concurring with Justice Bhat's viewpoint. In addition, the Supreme Court also declined to grant adoption rights to queer couples, with a 3:2 majority vote.
Effectively, the Supreme Court has passed the responsibility of recognising same-sex marriages to the legislature. While this might seem like a return to square one, it is crucial to acknowledge the positive aspect of CJI Chandrachud's declaration that queerness is a natural phenomenon and that the right to enter into a union cannot be restricted based on gender identity.
In short, it has been a blend of setbacks and some progress, and the apex court has now agreed to consider review petitions on the verdict that stems from 20 petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists. These petitions collectively challenged the provisions of the Special Marriage Act, 1954, the Hindu Marriage Act, 1955, and the Foreign Marriage Act, 1969, contending that these legislations, in their current form, perpetuated discrimination against the LGBTQIA+ community by failing to recognise non-heterosexual marriages.
Challenging the status quo
The legal journey leading to this verdict saw several significant developments that underscored the complexity of the issue at hand. It began with the Union challenging the maintainability of the petitions, setting the stage for a protracted legal battle. The apex court initially made it clear that it would not interfere with personal laws, limiting the challenge to the scope of the Special Marriage Act, which raised questions about the fate of marriage equality in the country. The Union's dismissal of the pleas for marriage equality as the views of a few "urban elitists" marked a turning point, as the Supreme Court disagreed with it, suggesting a potential shift in societal attitudes.
Also read: There May Be a Silver Lining in the Supreme Court’s Marriage Equality Judgment
The CJI's observations on gender fluidity were pivotal as he emphasised its multifaceted nature and challenged the simplistic definitions found in the Special Marriage Act. The Supreme Court's recognition of the inclusivity of Indian culture and traditions hinted at the need for a more progressive approach towards queer rights.
The Bar Council of India's plea to leave the issue to the legislative process citing widespread opposition underscored the challenges faced by the LGBTQIA+ community. Discussions about introducing gender-neutral terms in the Special Marriage Act represented a hopeful step towards recognising queer marriages. Ultimately, the Union's agreement to examine rights for same-sex couples without providing legal recognition marked a glimmer of hope amid a contentious legal battle.
A missed opportunity
In the culmination of this legal battle, Justice Kaul, while delivering the verdict, acknowledged the historical injustice and discrimination faced by the queer community. He highlighted the opportunity to rectify these wrongs and called for governance to grant rights to such unions. However, this opportunity remains unrealised. The Supreme Court has indeed set a positive narrative on queer rights by emphasising that selecting a life partner is a fundamental aspect of one's life choices, intimately linked to the right to life and liberty under Article 21 of the Indian constitution.
Nevertheless, these considerate words lack concrete action, as the verdict does not result in any amendments to existing acts or the reading down of Section 4 of the Special Marriage Act, 1954. There is still a long road ahead for LGBTQIA+ rights in India, and the verdict emphasises the pressing need for legislative reform to ensure equal rights for all citizens.
India's legal revolution for queer rights
The legal landscape on the self-determination of life partners within the LGBTQIA+ community in India has borne witness to profound changes over the years. Recent proceedings within the Supreme Court have manifestly illustrated a paradigm shift in legal paradigms. Prominent adjudications have been instrumental in sculpting this evolution.
In the NALSA vs Union of India case, the Supreme Court staunchly upheld the autonomy of transgender individuals in determining their gender identity, thereby mandating the legal recognition of male, female, or third gender. The KS Puttaswamy vs Union of India judgment recognised the right to privacy as a sacrosanct fundamental right, nullifying antecedent verdicts that cast aspersions on the entitlements of LGBTQIA+ individuals.
The Shafin Jahan vs Union of India ruling emphasised the prerogative to select one's partner as a foundational tenet of liberty and dignity. The Shakti Vahini vs Union of India decision fortified the right to choose a life partner as an inherent entitlement, particularly in cases where consenting adults forge a union. The watershed moment arrived with the Navtej Johar vs Union of India verdict, as it dismantled IPC Section 377, thereby decriminalising homosexuality and emphasising parity within the LGBTQIA+ community.
Moreover, the Deepika Singh vs Central Administrative Tribunal ruling acknowledged the diverse familial configurations, encompassing queer matrimonial unions. Collectively, these cases signify a progressive legal transformation in India, affirming the right of the LGBTQIA+ community to select their partners, and asserting their liberty, while underscoring equality and dignity as quintessential principles.
Implications and global impact
The Supreme Court's denying legal recognition of queer marriages and adoption rights for LGBTQIA+ couples has significant ramifications for India's global standing, especially in the realms of human rights.
This verdict threatens to cast a shadow over India's international reputation. It projects an image of India as a nation that is not wholeheartedly embracing and safeguarding the rights of its LGBTQIA+ populace, potentially subjecting it to criticism and scrutiny from international human rights bodies and foreign governments. Internationally, this decision might be perceived as a stark departure from prevailing legal norms that vehemently advocate for equality and non-discrimination. A multitude of countries have already recognised same-sex marriages and instituted comprehensive legal protections for LGBTQIA+ individuals. In this light, India's stance could be seen as a regressive outlier in the global context.
Furthermore, certain countries and international organisations hold LGBTQIA+ rights in high regard and have integrated them into their diplomatic relationships and trade agreements. India's position may lead to potential diplomatic friction or trade impediments with these nations.
Also read: With the SC’s Same-Sex Marriage Verdict, the Onus of Being Safe Is on the LGBTQI People Again
The verdict's impact goes beyond legal matters; it may influence the fate of LGBTQIA+ individuals who face persecution in their home countries and seek refuge in more inclusive nations. This decision could undermine India's status as a potential sanctuary for such individuals, potentially reducing the number of LGBTQIA+ asylum seekers in the country.
On the global stage, international LGBTQIA+ rights organisations may intensify their advocacy efforts and exert greater pressure on India to overhaul its legal framework to align with universally recognised human rights standards. This could elevate the discourse surrounding India's LGBTQIA+ rights policies in international forums.
The significance of India's stance also extends to its neighbouring nations in South Asia. India's posture on LGBTQIA+ rights can serve as a powerful influencer. A more inclusive approach could inspire neighbouring countries in the region to adopt similar policies, fostering a wave of progressive change. Conversely, a regressive stance could have the opposite effect, discouraging regional progress.
Global progress in marriage equality
In the evolving landscape of marriage equality, the global stage now boasts a remarkable 35 countries that have embraced the legalisation of same-sex marriage. Notably, the Thailand cabinet's recent approval of an amendment to its civil code to allow same-sex marriage this week gives a new push to this ongoing narrative. With expectations for the draft to be submitted to parliament next month, this move aligns with a growing trend among nations to recognise and codify equal marital rights for all individuals.
Similarly, the legislative triumph in Estonia on June 20, 2023, also signals a noteworthy stride forward, with its enactment slated for January 1, 2024. In the realm of legislative action, 23 countries, including Australia, Ireland, and Switzerland, charted their course towards inclusivity through comprehensive national statutes, a significant milestone achieved in some cases after resounding nationwide referendums.
Also read: How Standards Were Created to Fit the SC’s Denial of the Right to Marry to LGBTQ People
Conversely, the legal tapestry weaves another strand of progress, as 10 nations, spanning from Austria to Brazil, and Colombia to Ecuador, seized the mantle of same-sex marriage through court decisions, illustrating the potency of judicial activism. Notably, South Africa and Taiwan, guided by the compelling voices of their judiciaries, responded with legislative endorsement in compliance with these court directives.
Importantly, Pope Francis suggested that “it may be possible to bless same-sex unions” as the defence of objective truth includes kindness, patience, understanding, tenderness, and encouragement so that pastoral prejudice or a mistaken concept of marriage must not stop blessings. He was responding to five conservative cardinals who urged him to affirm the Catholic Church's teaching on homosexuality.
Subsequently, Bishop Karl-Heinz Wiesemann of Speyer, Germany, asked priests to ‘bless’ homosexual unions. This tapestry reflects not only the global scope of progress but also the multitude of paths taken, as the world continues to journey toward universal marriage equality. The imperative for the global community lies in acknowledging that equality necessitates the guarantee of uniform access to available choices for all individuals.
The need for a new legal framework
It is essential that India moves beyond symbolic gestures and takes concrete steps to ensure equality and inclusivity for its LGBTQIA+ citizens. The legal framework, as it stands, falls short of safeguarding their rights and recognising their lived experiences. It is imperative to acknowledge that the fight for LGBTQIA+ rights is not merely about marriage but extends to securing comprehensive legal protection and equal opportunities in all aspects of life.
To address this, a new legal framework should be established to recognize same-sex marriages, adoption rights, and other aspects of LGBTQIA+ equality. This framework should be based on principles of equality, non-discrimination, and respect for individual autonomy, echoing the progressive values enshrined in the Indian constitution. Such a framework should include all genders, identities, and orientations, offering comprehensive protection against discrimination in areas like education, employment, healthcare, and housing.
A comprehensive equality act
In light of the Supreme Court's verdict, it is time for the Indian government to draft and implement a comprehensive equality act. This act would provide comprehensive legal protection for LGBTQIA+ individuals, addressing not only the recognition of same-sex marriages but also issues like adoption, non-discrimination, and healthcare access.
The legislation shall be part of a groundbreaking policy perspective designed to promote inclusivity and equal rights for the LGBTQIA+ community. At its core, the proposed act advocates for the official recognition of same-sex marriages and equal adoption rights for LGBTQIA+ couples, acknowledging the diversity of unions and ensuring equitable legal standing for all families.
Going beyond marital rights, the legislation should take a firm stance against discrimination, prohibiting biases based on sexual orientation, gender identity, and expression across various sectors, including education, employment, housing, and healthcare.
Emphasising the role of education in fostering understanding and acceptance, the act shall encourage the promotion of LGBTQIA+ awareness and inclusion in educational curricula. Additionally, it would address the unique healthcare needs of LGBTQIA+ individuals by ensuring access to inclusive healthcare services including gender-affirming care. This comprehensive policy proposal aligns with the values of democracy, equality, and non-discrimination and is a significant step toward creating a more inclusive and just society for all citizens. It is a reminder that legal change is not only about the courtroom but also about the legislative process and democratic spirit that shapes the nation's future.
Amal Chandra is a student rights activist. Hima Tara Sam is a student of History at Delhi University.
The Wire is now on WhatsApp. Follow our channel for sharp analysis and opinions on the latest developments.
