While the Supreme Court of Nepal last year recognised marriage equality and since then has recognised two non-heterosexual marriages, including the recent marriage of a lesbian couple, Indian courts continue to vacillate and dither on the issue.
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IN 2007, the Supreme Court of Nepal pronounced a historic judgment in Sunil Babu Pant and Others versus Nepal Government and Others.
Based on the plea of a group of petitioners asking for equal rights under The Interim Constitution of Nepal, 2063 (2007), the court recognised the rights of gender and sexual minorities, including the legal recognition of the third gender. It went ahead to assert that the right to marriage of gender and sexual minorities should be protected by law.
Around this time, a group of petitioners had approached the Delhi High Court seeking to read down Section 377 (unnatural offences) of the Indian Penal Code, 1860.
The colonial-era Section 377 considered consensual sex between same-sex adults as an offence against the “order of nature”.
In 2009, the Delhi High Court read down Section 377 to the extent it criminalised non-heterosexual consensual relationships in Naz Foundation versus Government of NCT of Delhi.
However, the Naz Foundation judgment was soon challenged and ultimately overturned in 2013 by the Supreme Court, leading to the re-criminalisation of consensual non-heteronormative sex in India.
It took five more years for a Supreme Court Constitution Bench of five judges in Navtej Singh Johar judgment to read down Section 377 and uphold the 2009 Naz Foundation judgment.
Fast forward to 2023, gender and sexual minorities in both countries demand marriage equality.
While the Supreme Court of Nepal on March 20, 2023 recognised marriage equality and ordered the government to amend laws which are discriminatory towards gender and sexual minorities, India’s marriage equality proceedings took an unexpected turn.
Instead of the Supreme Court of India deciding on the specific issue of exclusion of gender and sexual minorities from the institution of marriage, it held that there is no fundamental right to marriage.
It held that in 2018, the court had only read down Section 377 and did not give legal recognition to non-heterosexual relationships carving out fundamental rights under the Indian Constitution.
India’s so-called marriage equality judgment has opened a Pandora’s box of legal issues for gender and sexual minorities, one of the most pertinent being the legal status of their relationship.
In Nepal, since the March 2023 judgment, the Supreme Court of Nepal has ordered the government to establish a transitional mechanism for registering non-heterosexual marriages.
After that, despite the lower court failing to abide by the precedents, Nepal ultimately registered a non-heterosexual marriage between a transgender woman and a gay man on November 29, 2023.
Recently, Nepal registered its first-ever marriage between a lesbian couple.
Nepal’s example is one of the most closest and relatable examples of a jurisdiction that has successfully understood the demands of gender and sexual minorities and has given it a legal shape.
Comparing the experience of the two jurisdictions, what makes Nepal different is how the Supreme Court of Nepal based all the issues around the principle of non-discrimination, which has both negative and positive connotations.
For instance, on the issue of marriage equality, the Supreme Court of Nepal’s underlying reasoning was that despite the social morality still regulating gender identity and sexual orientation, once a constitution is in place, the law must be such that it prevents discrimination.
It went ahead and asked the government to enact laws regulating marriage equality.
For a community that has faced historical discrimination, negating discrimination does little. That is where the positive affirmation of the State towards enacting policy measures for the upliftment of the community goes on to make a real difference.
But India’s efforts towards affirmative action have been an exercise in vacillation. This could be understood from the Vishaka and National Legal Services Authority (NALSA) judgments.
In Vishaka, the Supreme Court recognised that lack of laws protecting women against discrimination in the workplace violated provisions of the fundamental rights guaranteed under Part III of the Indian Constitution and the Convention on the Elimination of All Forms of Discrimination against Women.
The court went ahead and drafted guidelines on which the legislature enacted the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act only in 2013.
Similar is the NALSA case where the Supreme Court granted legal recognition to transgender persons and issued extensive guidelines including the affirmative obligates that the State must adopt.
It was only in 2019 that the Parliament enacted the Transgender Persons (Protection of Rights) Act, 2019.
These two examples are enough to show that certain issues could not be left to the legislature. The courts must and should play a significant role in establishing clear principles of law, even if it comes at the cost of judicial overreach.
