In October last year, the Supreme Court shocked the groups fighting for the rights of alternative sexualities in the country when a five-judge bench, headed by Chief Justice D.Y. Chandrachud, unanimously held that the LGBTQIA+ people were not entitled to be legally wedded under the Constitution. The activists did not find comfort in the fact that a five-judge bench delivered four separate judgements on the issue since a thread of unanimity ran through all of them despite the differences.
The LGBTQIA+ community had pinned its hopes on the Supreme Court after it won a long-drawn legal battle to decriminalise consensual non-binary sex, which had faced stiff resistance in the government and lower courts. The community feels that a right to civil union would have given it access to civil rights that are denied to them by default.
Two years after the court read down Section 377 of the Indian Penal Code, which stands replaced now, in September 2018, a report Queering the Law: Making Indian Laws LGBTQIA+ Inclusive commented on the difficulties that the community continued to face in accessing the rights given to them by the court. In its introduction to the chapter on identification documents, the report states, “Identity documents are essential for accessing an array of rights and benefits. But updating them can be very difficult, particularly for transgender persons. Procedures for doing so are complicated, and officials in the process may often discriminate against queer persons.”
For example, basic documents like the Aadhaar card, the PAN card and the passport require applicants to choose from either male, female or transgender. There is no place for other genders—there are 72 of them. Considering the fact that each of these government documents is processed by a separate department, the cost of amendments in terms of procedures, time and energy will be huge. And, this is just one of the several chapters in the manual.
Despite the decision against civil union of the community members, the judges acknowledged the difficulties the community members go through in society and government offices. All the judges directed the Centre to form a committee to examine the entitlements of the queer community.
The central government has formed a six–member committee to look into the problems of the queer community. The committee has its task cut out. Accessibility to goods and services should not be difficult for the community, social welfare schemes access should be smooth and they should not face any violence or threat. Additionally, the queer people should not face any non- voluntary medical surgeries or treatments. Mental health is also part of the committees’ mandate.
Political Momentum
The Supreme Court judgement underlined the fact that Parliament should play an active role in addressing the civil rights, including of union, of the LGBTQIA+ community.
In the run-up to the General Election, the Indian National Congress included the concerns of the community in its election manifesto. It read: “After wide consultation, [the] Congress will bring a law to recognise civil unions between couples belonging to the LGBTQIA+ community.”
Despite the decision against civil union of the community members, the judges acknowledged the difficulties the community members go through in society and government offices
Laxmi Narayan Tripathi, a renowned transgender activist, looks at this development in a positive light, saying, “The decriminalisation of consensual sex in the queer community has given a confidence boost to the community. It has brought in a lot of supportive action. Now we see that the Congress has said that when it comes to power, it will look into the civil union in the queer community.” Tripathi, however, cautions that defining categories of individuals within the queer community who could marry or enter into a civil union will pose a challenge.
The CPI(M) is the other party that has decided to act on the Supreme Court’s suggestion and give rights to the queer community through the parliamentary route.
BJPs’ Sankalp Patra too states, “We will expand the network of Garima Grahas to cater to the needs of transgender individuals. We will issue identity cards to ensure their recognition nationwide. Furthermore, all eligible transgender individuals will be covered under the Ayushman Bharat Yojana.”
Stuck in the Closet
Queer activists believe that the issue of same-sex marriage solves everyday problems beyond being a right of dignity. Manvendra Singh Gohil, who is associated with the erstwhile princely state of Rajpipla in Gujarat in a titular capacity and is a LGBTQIA+ rights activist, says, “Conferring same sex marriage rights on the LGBTQIA+ community means giving basic human rights to them. These are fundamental rights provided by the Constitution, where all citizens of India—irrespective of their caste, creed, race, religion and sexual orientation—have equal rights to marry, love and live with loved ones.” Gohil came out as gay several years ago.
Talking about the challenges that the community faces, he says, “In the absence of a legal right to marry, we are not able to open joint bank accounts; we cannot have a nominee of our spouse and we cannot own properties together. We have no inheritance law in place.”
However, recognising same-sex marriages as legal is a necessary but not sufficient condition to give the community these rights. The Supreme Court has already made that clear. Gujarat High Court advocate Aaditya Bhatt, who is the co-founder of Bhatt and Joshi Associates, a full service law firm, says that the subject of inheritance is dealt with exclusively by the personal and family laws of different religions in India. “However, a problem arises in determining rightful ownership of such couples’ properties in case of succession,” he adds.
“While the Special Marriage Act, 1954, has created a feasible scope for succession, individuals are still hesitant to register under the act. This is because most religious segments in India give high importance to their respective personal laws of succession; and the prospect of giving it away compels them to disregard the act,” according to the firm. During the hearing of the same-sex marriage cases, the Supreme Court bench observed that there were several statutes governing various rights consequential to marriage.
M.R. Shamshad, a Supreme Court advocate, says, “The Special Marriage Act is a way to facilitate the marriage of a heterosexual couple coming from different backgrounds, including religion. A Hindu, Jain, Buddhist and Sikh person will still not be deprived from the HUF [Hindu Undivided Family] status and succession of property. If this marriage is not a valid marriage as per Hindu Marriage Act, how will one resolve the issue of inheritance?”
Similarly, if Muslims or Christians marry under this act, their status for claiming succession from their parents will remain intact in view of the Caste Disabilities Removal Act, 1850 despite the fact that inheritance in Muslims is governed by their personal laws and it prohibits such marriage. The challenge, however, will be to the inheritance rights of a partner in this marriage or their [the couple’s] adopted child, Shamshad observes.
Beyond inheritance, same-sex couples seek solution to other issues too but they may not get fortunate. “There are many issues that we are facing, especially those who are married and have their spouses outside the country. They have a lot of difficulty in travelling to India. In the case of a heterosexual couple, the foreign spouse can get an OCI passport. But in our case, that is not allowed,” says Gohil, talking about the problem in getting overseas citizen of India papers.
Additionally, in certain cases, legally married couples in India can file taxes jointly, avail tax benefits by adjusting taxable assets between each other, get inheritance rights, medical insurance, disability and other social security benefits.
Power of Pink Economy
Another argument in favour of recognition of same-sex marriages is that it will boost the pink economy, the business generated in the country by the LGBTQIA+ community.
Prateek Raj, assistant professor of strategy at the Indian Institute of Management, Bangalore, says, “The pink economy is going to expand and become more salient in the 21st century, as queer people are more assertive about their freedoms today than before, with or without the legally sanctified freedoms.”
A paper, titled Pink Capitalism: Perspectives and Implications for Cultural Management by Lorenzo Yeh, states that the pink capitalism wave is intensifying and will influence local businesses. The digitalisation of business and social media is also affecting the field of pink capitalism which gives a number of business opportunities to LGBTQIA+ in “virtual reality”.
Anjali Byce, chief human resource officer at Sterlite Technology Limited, says that LGBTQIA+ consumers and allies represent a significant market segment. “By adopting an LGBTQIA+ friendly office policy, companies can connect with this consumer base, build brand loyalty and tap into new market opportunities. Inclusive environments foster diverse perspectives and experiences, which can spark innovation and creativity,” she adds.
Niccolo Nitti, global head, people and organisation at Novartis Corporate Centers, says, “When individuals feel accepted and valued for who they are, they are more likely to experience higher job satisfaction, overall well-being and increased productivity.” The company claims to have supportive policies like gender-neutral parental leave and an inclusive insurance policy.
Hoping for More
Raj from IIM, Bangalore, observes that legal recognition of gender equality and women rights paved the way for women entering and participating in the mainstream of the global economy. “Similarly, recognition of queer rights will pave the way for the integration of queer people into the mainstream. Such integration is essential, and marriage equality is a necessary step in that integration,” he says.
However, if the community’s experiences after the Supreme Court verdicts on transgender rights and Section 377 are a yardstick, it will take much more for them to get the rights that they seek. It is to be seen when will the world dominated by black and white make space for rainbow colours.
