What is The LGBTQ+ Community?
LGBTQIA+ is an abbreviation for the people of the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, and Asexual/Aromantic communities. It is not exclusive to the labels listed above; there are a variety of other identities as well including demisexual, demi gender, pansexual, genderfluid, and many more. The community is made up of people who do not conform to the societal norms of cis-gender (identifying with the gender assigned at birth) or heterosexuality; for this, they are often shunned and ostracised. In the recent past, with the development of technology and the advent of globalisation, the concept of the community has become more widely accepted; the increased number of people “coming out” or identifying themselves as part of the community has definitely helped in this. The acceptance is slowly extending to support from State Agencies and the Governments of countries stepping in with policies and laws that promote equality for them. However, this is only true with certain developed and developing countries, especially in the West and among Nordic nations. While Asian, African, and Latin American countries are yet to claim the same developments, the India Government has certainly taken steps in the right direction with regard to the LGBTIQ+ community, and this is supported further by the actions taken by State Governments. Despite the seeming progress of acceptance in India, there is yet intense discrimination and hate towards the community; this was proved by the Centre’s current statement opposing same-sex marriages in India, citing the conservative and religious nature of society.
It is a common misconception that being part of the community is a western concept; that these ideals were only instilled in the minds of Indian people post-colonization and globalisation. However, this is far from the truth – Indian history is generously sprinkled with queer people who have been erased from conventional textbooks and retellings. According to mythologists, historians as well as literary evidence found in the scriptures, queerness was a normalised part of society. For example, in the Krittivasa Ramayana, the story of King Bhagiratha, who was stated to have been born of two women; or in Valmiki’s Ramayana where Lord Hanuman is stated to have seen rakshasa (demonic) women being physically affectionate with other women. In Muslim literature, the founder of the Mughal Empire, Babur, in his memoir Baburnama, professes his attraction towards a boy named Baburi. In addition, Mubarak, the son of Alauddin Khalji, the ruler of the Delhi Sultanate between the years 1296 and 1316, is known for his relationship with one of the noblemen of his court.
In fact, the criminalization of homosexuality was only introduced during the British regime, when they introduced section 377 into the Indian Penal Code in 1881, as a result of the Catholic Church and its supremacy at that time. In 1977, more than a century later, Shakuntala Devi published the first study on homosexuality in India, calling for full and complete acceptance of the community. Soon after, the first of its kind All-India Hijra Conference was convened in Agra in 1981, comprising over 50, 000 members from the trans community, hailing from all parts of the country; as a result, in 1994, Hijras or trans people were granted legal voting rights as a third-gender. The same year saw the first opposition to the infamous section 377 – which was dismissed.
Decriminalisation and Section 377
This set-in motion the various Public Interest Litigations (PIL) that were filed with the intent to decriminalise homosexuality; in 2001, the Naz Foundation filed a PIL with the High Court of Delhi. The Hon’ble court found Section 377 to be violative of the fundamental rights to life, liberty, equality, and privacy that are provided by the Indian Constitution. This meant that while being homosexual was not a crime, it was still illegal to conduct homosexual acts. This decriminalisation did not go without protests – various critics challenged the decision in the Supreme Court; nevertheless, this was a massive move for the LGBTQ+ community.
In 2014, the apex court passed two very contrasting judgments – in one, they stated that as the community only constituted a “minuscule fraction” of the Indian demographic, making legislative amendments for them would be unsustainable. However, in another, it was held that transgender people should be treated as a third-gender category, effectively recognizing their rights and identities. The SC in 2017 gave the community the right to safely express their identities, with protection under the Right to Privacy law.
Then, on the 6th of September 2018, in a historical move, the Supreme Court struck down part of Section 377, the portion that criminalised homosexuality, in the case Navtej Singh Johar vs Union of India. This was a monumental step for the community – after nearly two centuries of being criminalised, the LGBTQ+ community was no longer bound by unconstitutional laws that ostracised them; consensual sex between all adults was made legal, including between homosexual people.
In India, laws related to marriage and the union of people are regulated by legislation that revolves around religious beliefs – they fall under the Muslim Personal Law Application Act, the Hindu Marriage Act, the Indian Christian Marriage Act, the Parsi Marriage and Divorce Act, the Anand Marriage Act and the Special Marriage Act. There are state laws that regulate the registration of marriage as well that are thrown into the mix. All the provisions of these acts refer to and are restricted to heterosexual couples; a union between a man and a woman. Ironically, there have been hundreds of marriages that have taken place between same-sex couples throughout Indian history, as well as currently, where Hindu priests conduct gay marriages in foreign countries.
However, the Supreme Court and Indian law do recognize the rights of adult persons to live with whomever they wish – the apex court in a recent judgement acknowledged the existence of “atypical” families; those that were made up of single parents, homosexual couples, etc. In the case of S. Khushboo vs Kanniammal, the apex court held that two adult individuals living together consensually could not be considered illegal; in 2019 in another case, the SC reinstated this judgement. Under Indian laws, certain criteria have to be met in order for a relationship to be considered a live-in relationship, including the persons being of legal age to marry, and the period they have willingly cohabited together. If the conditions are satisfied, then the woman in the relationship is entitled to inherit her partner’s property upon his death; any children born to the couple are not considered illegitimate either. In certain cases, people that have been in live-in relationships are recognized as married couples. It is unclear whether these rules apply to same-sex couples as well.
While various High Courts including the Kerala HC, the Orissa HC, the Haryana, and Punjab HC, and the Uttarakhand HC have recognized the rights of same-sex couples to be in live-in relationships without being harassed for the same, it does not negate the ill effects that come with the lack of legal recognition of unions between homosexual couples, or the various other discriminations that they face under Indian law. Among these is the incapability of homosexual partners to adopt a child together – they can only do so alone. Many believe that recognizing same-sex marriage would be a stepping stone to resolving India of these discrimination. In a 2018 case regarding inter-caste marriages (Shakti Vahini v. Union of India), the Supreme Court upheld the right of individuals to marry whomever they wanted to; LGBTQ+ activists argue that this judgement must apply to same-sex couples too.
Working towards this goal, several petitions have been filed across the nation to legally recognize same-sex marriages, but in vain. The Delhi HC and the Allahabad HC, on two separate occasions, dismissed the plea to accept same-sex marriages under the Hindu Marriage Act in July 2019. In 2020, a couple, Sonu MS and Nikesh Pushkaran filed a lawsuit in the Kerala HC that argued the principles of non-arbitrariness, non-discrimination, individual dignity, and personal autonomy were violated when they were not permitted to wed under the Special Marriage Act.
Current Proceedings – Delhi HC
The case Abhijit Iyer Mitra & Ors v. Union of India was filed in the Delhi High Court in 2020; it argued the right to marriage for homosexual couples under the Hindu Marriage Act. It was argued by the petitioners that section 5 of the Act did not distinguish between homosexual or heterosexual people and that it recognizes marriage between two Hindus – they seek a declaration stating the same, and for same-sex marriages to be recognized under the act. The Delhi HC asked the Union Government to respond to this petition.
In October 2020, filed a lawsuit – Dr. Kavita Arora & Anr v. Union of India with the Delhi HC seeking a declaration that the Special Marriage Act should apply to all couples, regardless of their sexuality or gender. The petitioners argue that denying marriage under the Act is a violation of Articles 14, 15, 19, and 21 of the Indian Constitution. As same-sex couples are prohibited from marrying, they are unable to own property together, open joint accounts together or access life insurance plans. The HC once again looked to the Union Government for responses to this plea.
The third petition regarding the matter was filed in Vaibhav Jain & Anr v. Union of India, who married in the USA in 2017. They contended that the Foreign Marriage Act, of 1969 should apply to homosexual relationships and that not recognizing it is unconstitutional. The HC requested the Consulate General of India in New York and the Union Government to respond to the same.
The date for the hearing of all three petitions was set by the Delhi HC as the 8th of January 2021. The government asked the court to dismiss the cases, citing religion, age-old customs, and rituals that prevented same-sex couples from marrying. Yet another petition was filed in February of 2021 – Udit Sood and Ors. v. Union of India and Anr. The petitioners contended the same as those in the Dr. Kavita Arora case. A fifth petition, Joydeep Sengupta v. Union of India & Ors, was filed, where arguments were brought up using the Citizenship Act of 1955. They claimed that it did not differentiate between homosexual and heterosexual couples and that the same-sex partner of an Overseas Citizen of India (OCI) should be able to apply for an OCI card as well. On the final date of the hearing in November of 2021, the advocates representing the couples requested the proceedings be live-streamed to increase awareness about the issues as well as expand reach regarding the matter; this was opposed by the government which stated that this was merely a stunt to garner sympathy from the public and the next date for hearing set for May of 2022. During this hearing, the court objected to the comments made by the government, wherefore the latter agreed to file a new response.
The Supreme Court agreed to hear the case regarding the legalisation of same-sex marriages in India – which was to begin after seeking all the petitions pending before the High Courts were transferred directly to the apex court for uniformity – the date was set for January of 2023. The SC heard the aforementioned matter on the 6th of January, and held that all petitions were to be moved; the next date for the hearing was set for the 13th of March. In this hearing, the SC acknowledged the pivotal nature and importance of the matter at hand and referred the case to a five-judge Constitution bench; the date has been set for the 18th of April. It will be live-streamed. The Centre, post this hearing, vehemently opposed the idea of legalising same-sex marriages. They were keen to establish that such unions were meant to be between a single man and a single woman and that involving anyone else would be a violation of the sanctity of marriages. Come April, the SC will decide whether or not to be inclusive of homosexual people and offer them the legal protection they deserve.
Are other countries doing better?
If India legalizes same-sex marriage, it will be the 35th country worldwide to do so; this can be seen as an abysmally low portion of the 195 countries that exist. The first ever country to legalise this union was the Netherlands in 2001, followed by various American, Australian, European, African, and even Asian nations over the years. 22 of these countries have legalised same-sex marriages through national legislation, 10 of them through court decisions and South Africa and Taiwan enacted legislation due to court mandates.
The most recent ones include the Constitutional Court in Slovenia that held the ban on same-sex marriages to be unconstitutional; giving the Parliament six months to draft legislation remedying this – it was implemented immediately. The President of Chile 2021 signed a Marriage Equity Bill into law that legalised same-sex marriages.
There are various forms of discrimination that take place against the LGBTQ+ community, such as ostracization from society – it is the duty of the Government and the Judiciary to ensure the protection of their citizens, regardless of their sexual or gender orientation. Refusing to legalize same-sex marriage and in turn, actively preventing them from receiving legal protection will only further the differentiation that occurs. The decision of the constitutional bench will be a landmark one – it will set the foundation for either acceptance or further rejection of the people of the community in India – and for this, it is hoped that the judgement will be favourable to the petitioners.