India’s LGBTQIA+ Community Hopes For A Happily Ever

As the Supreme Court gears up to hear petitions seeking recognition of same-sex marriages on April 18, there are a lot of conversations happening on ground, with many hoping that the court will rule in their favour and finally give them their fundamental rights.

What has been a long fight, will find ground breaking momentum with the Supreme Court ruling in their favour they say. Same-sex marriages are not legally recognised in India so far. This means that queer couples who get married do not have equal legal rights like a heterosexual couples.

The ‘Compendium on LGBTQIA+ Rights,' a joint effort by the Keshav Suri Foundation and law firm Khaitan & Co, explains in a report the key laws applicable to the LGBTQIA+ community.

For example, Indian same‐sex couples cannot adopt a child together in India. “As per the Adoption Regulations, 2017, a couple can adopt a child together provided they have been married for a period of two years. Since a marriage between the same‐ sex couple is not legally recognised, same‐sex couples cannot adopt a child together in India.”

They also cannot have a child via surrogacy in India. "The Surrogacy Act only permits an Indian couple and an Indian widow or divorcee woman between the age of 35 to 45 years to avail surrogacy. Importantly, the term couple has been defined as a legally married Indian man above the age of 21 years and woman above the age of 18 years who do not have any surviving child either biologically or via surrogacy or adoption," the report states.

The couple can also not adopt a child together from another country.

"As per Hague Convention on Adoption, an inter-country adoption shall take place only after the competent authority in the receiving state (India) has determined that the prospective adoptive parents are eligible and suitable to adopt.

“Since, same‐sex couples cannot adopt a child together in India, CARA will not deem the prospective adoptive parents eligible to adopt a child from another country," the report states.

Speaking to The Citizen, Rohin Bhatt, a 24-year-old non-binary queer rights activist and lawyer, who will also be part of the team fighting the petitions demanding the right to same sex marriage said that he is hoping that the apex court gives them a patient hearing.

“The court will of course hear the other side and then rule in the favour of fundamental rights. The Indian Supreme Court have had a chequered history as far as LGBTQ rights are concerned. Before Navtej Singh Johar, you had Suresh Kumar Kaushal who said that the LGBTQ falls into what they call a miniscule minority and doesn’t deserve their rights. We hope that the Supreme Court rules in favour of the fundamental rights,” Bhatt told The Citizen, as he gears up for the hearing on April 18.

The Supreme Court criminalised consensual same‐sex activity in Navtej Singh Johar VS Union of India and the striking down of Section 377 of the Indian Penal Code, 1860.

However, the High Courts have recognised that a person has a right to have a live-in relationship with a person of his/her choice even though such a person may belong to the same gender.

“The High Courts have recognised this right of live‐in / cohabitation as a part and parcel of right to liberty under Article 21 of the Constitution," the report explains.

Bhatt on the other hand said that during the previous hearing the Solicitor General claimed that there was no stigma against the LGBTQ community, hence putting out untruth facts.

“If there is no stigma, why is the Delhi Police arresting transgender people from signals? If there is no stigma, why is the commissioner of Nagpur issued a circular under section 134 of CRPC saying that trans people and other people for that matter will not beg in Nagpur until the G20 is over?” asked Bhatt.

He further asked why the Indian government is opposing the rights of equal rights to tooth and nail? Bhatt added that if the ruling is in their favour, it will change a lot of things for Indian queer couples.

“The changes we will see for the first time is that queer Indian citizens will be identified as totally equals. This means that every right that is for heterosexual couples will now be given to couples who are not straight,” he added. According to Bhatt, a lot of people will expect that with the marriage petition, the fight will end but there are way more important issues that still remain.

A large part of the LGBTQIA+ legal jurisprudence has developed at the hands of the courts. The following is list of key basic rights recognised by the courts of this country:

(a) Self‐determination of gender and Identification as a third gender

(b) Right to seek food security and to avail status of head of a household and laid down that under National Food Security Act, 2013

(c) Protection against marginalisation

(d) Personal liberty to engage in voluntary sexual acts

Meanwhile, religious leaders across different faiths have joined hands to oppose the plea for recognition of same-sex marriages in the Supreme Court.

Some have filed an application in the apex court opposing petitions in favour of same-sex marriages, while others have written to the President seeking her intervention.

The Jamaat-e-Islami Hind, Jamiat Ulama-i-Hind, the Communion of Churches, and the Akal Takht, along with representatives of the Ajmer dargah and Jain gurus have raised concerns about a legal sanction for same-sex marriages, claiming that it is against the natural family order apart from being in contravention of their differing scriptures.

Several leaders reiterated the sentiment that marriage is an institution for procreation, not recreation. The RSS also opposes same-sex marriage, though it has accepted same-sex relationships, holding a position in line with the Central government.

Jamiat Ulama-i-Hind has opposed the petitions seeking legal validation for same-sex marriages through an application filed in the Supreme Court. “The concept of marriage between two opposite sexes is like the basic feature of marriage itself which leads to the creation of a bundle of rights (maintenance, inheritance, guardianship, custody). By these petitions, the petitioners are seeking to dilute the concept of marriage by introducing a free-floating system through the concept of same-sex marriage,” the application stated.

However, for the queer community it is the hope that the court will grant their fundamental rights to them.

Paras, a software engineer based in Delhi said that he has faith in the judiciary. “Marriage is a fundamental right of every adult and I hope the bench realises that and grants it to the community. But there is a lingering fear as well but I am hopeful,” he added.

He added that it is the mindset of the society that would be difficult to change or the fact they would accept these changes instantly. “But getting the right allows people to live a much better life where many can avoid getting married to straight people or lavender marriages.

“I believe, with time, society might see that people from the community are capable of existing in stable and full-filling relationships just like anybody else with their own set of challenges and responsibilities. Gradually, this might change. That's the hope,” he said.

Paras hoped that there will be a time when India understands that every person is different and when they are restricted of their rights, it not only hurts the person themselves but also people around them.

“So, my only hope is that we can understand and move ahead despite our differences and opinions,” Paras added, hoping for a positive result.

There is a lot of anticipation among the queer community, even though the centre government has refused to acknowledge this. The Ministry of Law believes that while there may be various forms of relationships in society, “the legal recognition of marriage is for heterosexual relationships and the state has a legitimate interest in maintaining this” according to the filing seen by Reuters, which has not been made public.

Meanwhile, the Indian Psychiatric Society (IPS) , an umbrella body of psychiatrists in the country with close to 8,000 members, reiterated in its statement that homosexuality is a variant of normal sexuality and not an illness and also said that like every citizen of India, members of the LGBTQIA+ community should be treated equally.

“LGBTQIA spectrum individuals should be treated like all citizens of the country. Preventing any civil rights may lead to mental health issues,” read a statement released by IPS that extended its support for same-sex marriage, adoption and equal rights in India.

The decision to come out with a position statement was taken in a special meeting of IPS in Hyderabad 15 days back. Dr Vinay Kumar, president, IPS said the society is working towards sensitising people on gender neutrality. “While the same-sex couple going for adoption needs to be sensitised at multiple levels, it is also of utmost importance that the family, community, school and society, in general, are sensitised. We as a society are working on the same,” he said.

Speaking to The Citizen, Priyam Jain, a psychotherapist in private practice said she apologises on the behalf of mental health professionals for how they have looked at LGBTQ community in the past.

“I am personally on the side of legalising it because if you don’t do that then the repercussions on the whole sections of people – on their mental well-being, on their societal well being are far too many, and we have seen that.

“Many people who had to their families have not accepted and it is not normalised have faced acute depression and sometimes suicidal thoughts and self-loathing among other things,” she said, adding that the times have come where there is a need to bring awareness.

“So many facts of human beings are multi-faceted that there is no one way to live. If you are a straight person, you might not be able to completely empathise with the challenges that come when you are not straight,” she said.

On asking what else can be done to make people aware and educate them on the issue, Jain said that as mental health practitioners they should start from schools and sensitise teachers, students and parents that this is not a disease and just because we have not normalised it in the past then it does not mean it is not normal.

“The sensitisation has to begin at a very young age and with kids now growing up with social media I would still imagine that baked into what the young children are watching and there is a lot of awareness already young people have because of social media.

“But many times it’s the parents in the corporate world, the teachers have to do a little bit of unlearning. So, mental health professionals can really come in and hold sensitisation workshops and awareness based talks where we really try to unlearn,” she added.

Supreme Court Chief Justice D.Y. Chandrachud, heading a three-judge Bench on March 13, said that the case involved an “interplay” between the constitutional rights of life, liberty, dignity, equal treatment of members of the LGBTQ+ community on one side, and specific statutory enactments which considers only a married union between a biological man and woman on the other side.

The three-judge Bench, also comprising Justices P.S. Narasimha and J.B. Pardiwala, had invoked Article 145(3) of the Constitution to refer the case to a five-judge Bench. Article 145(3) mandates that cases involving substantial questions and interpretation of the Constitution should be heard by a Bench of at least five judges.

The petitioners had argued that the court’s judgement in Navtej Singh Johar in 2018, while decriminalising homosexuality, had also upheld the individual right to family and choice of partners. “Right to love and marry cannot be withheld from a class of persons solely on the basis of their sexual orientation or gender identity. Right to marry is the natural consequence of the decriminalisation judgement,” senior advocate A.M. Singhvi, for petitioners, submitted.

Bhatt, meanwhile, said that even if there is a worst-case scenario and the result is not in their favour, the queer people in this country are extremely resolute and determined in our fight for equality.

“The struggle will continue. We will continue to ask for equal rights in the political spectrum, we will continue to march on the street, we will continue to do the work that we already do,” he added.

Meanwhile, the Supreme Court Bar Association (SCBA) has condemned a resolution passed by the Bar Council of India which said the apex court should desist from hearing the pleas seeking legalisation of same-sex marriage, terming it "highly inappropriate."

On April 23, the Bar Council of India had claimed in its resolution that “more than 99.9% of people of the country are opposed to the idea of same-sex marriage”. It had urged the Supreme Court, which is currently hearing petitions seeking legal recognition of such marriages, to leave the question to Parliament.

On Friday, the Supreme Court Bar Association passed a resolution saying that it is the duty of the bench to hear the petition and decide whether the matter should be adjudicated by the court or left to Parliament. However, it added: “This resolution should not be construed in any manner that we are supporting or opposing the petitioner in the matter.”

The Bar Council had said that the subject of same-sex marriage is “highly sensitive” and carries “social, religious and cultural connotations” that requires wide spread consultations. It also said that the majority of the population believes that a decision by the Supreme Court in favour of the petitioners would go against India’s cultural and socio-religious structures of the country.

However, the legal body’s resolution was termed “ignorant and harmful” by queer and allied student groups from 36 law schools of the country.