A chequered year for the rainbow community

This was a year of bundling together of hope (and petitions) for sexual and gender minorities, to be nurtured with oral observations in the marriage equality case, and then left to wither under an unfavourable judgment, but the fight continues

ON Day 8 of the hearings in Supriyo@Supriya Chakraborty versus Union of India, the Chief Justice of India (CJI) Dr D.Y. Chandrachud made an important observation: To say that there is no fundamental right to marry would be far-fetched… What are the core constituents of marriage? If you look at each of the constituent elements, each of them is protected by constitutional values.”

Observations such as this, by members of the five-judge Bench no less, seasoned the ten-day-long hearings that had their fair share of unsavoury anti-LGBTQI moments.

They lifted the hopes of the non-heteronormative community— whether they were part of the ‘urban elite’ seeking elevation to judgeship or a butcher, the baker or candle-maker— that their long fight for equality would pass another significant hurdle. That they would finally have the right to opt for benchmarking their relationships with the dignity of marriage.

The CJI made the comment on May 9 as the head of the Supreme Court Bench seized of the matter of marriage equality for non-heteronormative couples.

To say that there is no fundamental right to marry would be far-fetched,” CJI Chandrachud during marriage equality hearings.

But on October 17, the Bench, also comprising Justices S.K. Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, unanimously held that there was no fundamental right to marry, thereby dashing the hopes of millions.

One must never forget history

Perhaps it is an indicator of the fragility of the rights gained by the LGBTQI community in India that the decriminalisation of consensual intercourse between same-sex adults by the Delhi High Court in Naz Foundation versus Government of NCT, which happened as far back as 2009, seems like yesterday.

In that case, the court had read down Section 377 of the Indian Penal Code (IPC), 1860 which criminalised homosexuality and termed it “against the order of nature”.

Before the community could celebrate their existence free from criminality, the Order of the high court was challenged before the Supreme Court. In 2013, the Supreme Court in Suresh Kumar Koushal & Anr versus Naz Foundation & Ors overturned the judgment of the Delhi High Court and held that Section 377 of the IPC did not suffer from any constitutional infirmities.

Gender and sexual minorities and their movement witnessed a setback because of this judgment. But it did not entirely discourage them from continuing the fight for their rights.

Also read: Marriage equality judgment: An explainer

In 2014, petitions were filed before the Supreme Court seeking legal recognition of the third gender. The petitioners pleaded that they had no access to welfare schemes of the government and were continuously discriminated against because of their gender identity.

A division Bench of K.S. Radhakrishnan and A.K. Sikri, in National Legal Services Authority versus Union of India (NALSA)& Ors, recognised transgender persons as a third gender. It upheld the right to gender self-identification. The court issued extensive guidelines on health-related issues and socio-economic accommodation of third-gender individuals.

A challenge was duly mounted against Suresh Koushal. In 2018, a five-judge Constitution Bench of the Supreme Court, in Navtej Singh Johar & Ors versus Union of India, upheld the 2009 Naz Foundation judgment.

The Union government filed an affidavit before the Delhi High Court stating that non-heterosexual marriages are not at par with the Indian family unit which recognises marriage only between a man and woman.

The court went a step ahead and sought an apology for the historic discrimination caused to the LGBTQI community.

Another barrier to equality and dignity had been broken down. The movement marched on.

In late 2020, petitions were filed before the high courts of Orissa, Kerala and Delhi seeking marriage rights for non-heteronormative couples under statutory laws. However, the government quickly opposed the plea.

The Union government filed an affidavit before the Delhi High Court stating that non-heterosexual marriages are not at par with the Indian family unit which recognises marriage only between a man and woman.

Soon, other petitions were filed before the Supreme Court. One of the petitions was filed by a gay couple, Sameer Samudra (an Indian citizen) and Amit Gokhale (a US citizen). The couple got married on September 18, 2010 in the US, but were denied registration of their marriage under the Foreign Marriage Act, 1969.

As the Delhi High Court was on the verge of concluding its proceedings, the marriage equality momentum led to the Supreme Court taking matters into its own hands in early January this year.

Every Tom, Dick and Harry had a say on marriage equality

On January 6, a three-judge Bench led by the CJI and comprising Justices P.S. Narasimha and J.B. Pardiwala transferred all petitions to itself amid protests against the action outside the court’s premises.

A Hindu nationalist group, which described itself as ‘Unite Hindu Front’ opposed the hearing on the grounds that it would “destroy our ancient civilised traditions”. They held placards that read: “Gay marriage is a sin and against Indian culture”.

Considering the January 6 Order, the Delhi High Court division Bench of Chief Justice Satish Chandra Sharma and Justice Subramoniun Prasad on January 30 transferred the pending petitions to the Supreme Court, including one filed in Abhijit Iyer Mitra & Ors versus Union of India.

On March 12, the Union government filed an affidavit before the Supreme Court opposing the recognition of non-heterosexual marriages. The affidavit stated that the government has a compelling State interest in granting recognition to heterosexual marriages only.

Also read: On the eve of the marriage equality judgment, a quick recap

On March 13, the three-judge Supreme Court Bench referred the petitions under Supriyo@Supriya Chakraborthy versus UOI & Anr, to a Bench of five judges terming the matter of “seminal importance”.

On January 6, a three-judge Bench led by the CJI and comprising Justices P.S. Narasimha and J.B. Pardiwala transferred all petitions to itself amid protests against the action outside the court’s premises.

The decision was welcomed by the community but there was criticism too, some from rather unexpected quarters. Twenty-one former judges of high courts issued a public statement on March 31 opposing the decision of the Supreme Court to hear the petitions. The statement remarked that recognising marriage equality would threaten “Bharatiya marriage traditions”.

The judges termed non-heterosexual marriages as “western-tinted” and stated that the nation is shocked at how this is being superimposed on Bharatiya society and culture at the cost of weakening the Indian family system.

The National Commission for the Protection of Child Rights (NCPCR) and the Delhi Commission for the Protection of Child Rights(DCPCR) found themselves at loggerheads.

On April 4, the DCPCR filed an intervention application supporting the petitions. It categorically opposed the claims raised by religious and political outfits that non-heterosexual couples are unfit to adopt and become parents, by citing relevant data.

As opposed to this, the NCPCR, on April 17, filed an intervention application claiming that adoption by non-heterosexual couples is “akin to endangering children”. It stated that adoption occurs in a “similar socio-cultural environment”, which is not possible in the “scenario of gay couples”.

Nevertheless, the Supreme Court’s five-judge Bench began hearing the petitions on April 18.

Marriage equality hearings and things in between 

Protests continued unabated during the hearings of the marriage equality petitions. On April 23, the Bar Council of India (BCI), in a joint meeting of all state Bar Councils, passed a resolution opposing the marriage equality hearings.

Terming itself the “mouthpiece of the common men”, the BCI claimed that the decision of the court could become harmful to future generations as “99.9 percent of the people” are opposed to marriage equality.

The government filed preliminary objections before the start of the hearings. It termed the non-heterosexual marriages as “urban elitist”. On April 19, Day 2 of the hearings, the Solicitor General of India informed the court that all states and Union territories are made a party to the petitions.

On March 12, the Union government filed an affidavit before the Supreme Court opposing the recognition of non-heterosexual marriages. The affidavit stated that the government has a compelling State interest in granting recognition to heterosexual marriages only.

During the hearings, the petitioners went into many tangents, as some might expect in such an emotional issue, while the court adopted an incremental approach. It limited the issue to whether a gender-neutral interpretation of the Special Marriage Act, 1954 is possible. That is, whether, instead of the terms ‘husband’ and ‘female’, the term ‘person’ could be read into the Act.

Also read: Supreme Court of Nepal asks government to establish “transitional mechanism” for registration of marriages of gender and sexual minorities 

During the hearing on April 19, the Supreme Court was also informed that India’s neighbouring country Nepal’s Supreme Court on March 22 had recognised marriage equality.

In Adhip Pokharel & Tobias Volz versus Ministry of Home Affairs & Department of Immigration, a division Bench of the Supreme Court comprising Justices Nepal Hari Prasad Phuyal and Tanka Bahadur Moktan, has asked Nepal’s Ministry of Law and Justice to prepare an equal marriage law or amend existing laws to accommodate the principles of equal marriage.

Upon receiving this information, the CJI remarked that it was definitely not an example of urban elitism as the government had alleged in its affidavit. The CJI said: “Nepal is certainly not an urban elite (country).”

During the hearings, the court also made certain other oral observations. It said that the core elements of marriage are protected by constitutional values and that the decriminalisation of homosexuality necessitated that non-heterosexual couples could be in a stable marriage-like relationship.

The Supreme Court reserved its judgment on May 11.

In 2019, the Transgender Persons (Protection of Rights) Act, 2019 was passed to replace the 2014 NALSA Guidelines.

The court had recognised that the transgender community is one of the most marginalised and their socio-economic interests must be advanced by the government through welfare policies. However, the legislation did not provide any reservations as the court’s guidelines stipulated for the socio-political upliftment of the society.

This year, the demand for horizontal reservations for transgender persons gained speed while the Supreme Court judgment on marriage equality lay pending.

The good neighbourhood

Outside India, other countries in Asia made giant strides towards equality of gender and sexual minorities.

Taiwan granted joint adoption rights to non-heterosexual couples. On May 16, Taiwan took the historic decision on the eve of the fourth anniversary of the adoption of its marriage equality law.

The government filed preliminary objections before the start of the hearings. It termed the non-heterosexual marriages as “urban elitist”.

On June 28, the Supreme Court of Nepal passed an interim Order directing the Office of the Prime Minister and the Council of Ministers of Nepal to establish a separate register of marriages for couples belonging to gender and sexual minorities.

On September 5, the Court of Final Appeal of the Hong Kong Special Administrative Region recognised non-heterosexual unions. While the court said that there is no constitutional right to marry, it held that not providing an alternative framework to recognise the relationship of non-heterosexual couples violates the right to privacy under the Hong Kong Bill of Rights.

Also read: How have the ten days of the marriage equality hearings panned out? A brief account

On October 4, the Supreme Court of Mauritius declared Section 250 of the Criminal Code, 1838, which proscribes sodomy, unconstitutional. The court cited India’s Navtej Singh Johar judgment, specifically Justice Indu Malhotra’s opinion which stated that homosexuality is not an aberration but a variation of sexuality.

The Navtej Singh Johar judgment has also inspired the Supreme Court of Sri Lanka. On April 21, the court held that the Penal Code (Amendment) Bill, which sought to decriminalise homosexuality, was not unconstitutional.

The Sri Lankan court had looked at how the Indian Supreme Court traced the history of criminalisation of homosexuality. It cited the judgments of the incumbent CJI and former CJI Dipak Misra on Section 377 of the IPC. They had held that Section 377 was unconstitutional because it was against the core constitutional values of liberty and dignity.

Gave nothing, took everything

In its October 17 judgment, the Supreme Court agreed with the respondents’ contention that there was no fundamental and unqualified right to marry.

While the majority opinion led by Justice Bhat with Justices Kohli and Narasimha held that there is no fundamental right to form unions, the CJI and Justice Kaul observed that the right to enter into cohabitational relationships is protected under Part III of the Indian Constitution.

The minority opinion held that non-heterosexual couples have a right to joint adoption under the Juvenile Justice (Care and Protection of Children) Act, 2015.

The Navtej Singh Johar judgment has also inspired the Supreme Court of Sri Lanka. On April 21, the court held that the Penal Code (Amendment) Bill, which sought to decriminalise homosexuality, was not unconstitutional.

The court unanimously held that transgender persons in heterosexual relationships have a right to marry. It also recognised that the community continues to face discrimination but left it to the government to take measures against such discrimination.

New beginnings?

Exactly a month after the Supreme Court’s marriage equality decision, Justice N. Anand Venkatesh of the Madras High Court suggested the Tamil Nadu government recognise the ‘deed of familial association’.

The deed of familial association is described as a right of partners to choose to form or retain families with the person they love and share a bond of mutual care.

With a review petition of the marriage equality judgment expected to be heard next year, and with the Navtej Singh Johar precedent at hand, the wise words of transgender rights activist Vyjayanti Mogli couldn’t ring truer, “Gender fluidity will slowly dissolve the rigid opposition to it.”

In a fight between a rock and water, the water always wins.