by
Shobha Aggarwal
“Amend the Special
Marriages Act to allow for marriages between people of the same sex (or between
people who may be inter-sexed, or have undergone sex-change surgery, and any
others). All consequential legal benefits of marriage should extend to gay
marriages as well, including the right to adopt children, to execute a
partner’s will, to inherit, etc. Same-sex couples should also be entitled to
the legal benefits that accrue to their heterosexual counterparts of common law
marriages.
No presumption as to fitness or unfitness for
custody of a child or visitation rights shall arise based on sexual orientation
of either parent in such a situation.
Alternatively, legally recognize and
encourage friendship agreements between single people of the same sex as a
valid way of organizing family life.”
-
From “ ‘Less
than Gay” a Citizens’ Report on the
status of homosexuality in India published by ABVA in November 1991
The efforts for legalizing same-sex marriage in India started
in November 1991 when AIDS Bhedbhav Virodhi Andolan (ABVA) released its
Citizens’ Report ‘Less than Gay’ on
the status of homosexuality in India. The Report carried a Charter of Demands
including demand for legalization of same-sex marriage; it was released at the
Press Club of India, New Delhi and was covered by the national press. We had at
that time submitted a petition to the Petitions Committee, Lok Sabha to address
our Charter of Demands and have done continuous campaign for implementation of our Charter
of Demands since 1991.
The issue
got raised in a day long public meeting held in 1992 at the Indian Social
Institute, New Delhi. The theme of the meeting was ‘Politics of Sexuality’.
Deliberation were held in a hall filled to capacity. A one-time heterosexually
married woman (and lesbian) – shared her experiences amongst others.
In March 1999, ABVA released its Report “For People Like Us.” This 64-paged report documents a fact-finding undertaken by two
ABVA members on one attempted lesbian suicide in Orissa, Eastern India. Many
lesbian couples have tried to commit suicide because of their inability to live
together and find acceptability in society. In fact we would say that lesbian
women have been at the forefront of the battle for gay rights in India. Over
the decades many lesbian couples have approached the courts to get legal
recognition for their union.
On 25
November 2022, ABVA released the 2nd Edition of “Less than Gay” in which the Charter of Demands was
reiterated and sent a copy of the report to Home Secretary, Govt. of India for
implementation of the Charter of Demands.
From 1994 to 2018 several petitions were filed
in courts for legalizing gay sex. However while ABVA in its 1994 petition has
asked for complete striking down of S. 377, Indian Penal Code (IPC) later cases
have diluted this demand to consensual adult sex in private. So the Supreme
Court in its 2018 judgement confined itself to partially repealing S. 377, IPC
to allow adult consensual homosexual sex in the privacy of one’s home.
At
the time S. 377, IPC was being adjudicated Indian Govt. assured the court that
it will not contest petitions challenging the constitutional validity of
Section 377 that criminalises homosexuality and will leave it to the wisdom of
the Supreme Court as long as it applies to “consensual acts of adults in
private”; and if the case also involves other rights and issues of the LGBTQIA+
community such as marriage, adoption, and inheritance, the government would
like to contest on those.
After the
2018 judgement of the Supreme Court several petitions were filed by same-sex
couples in 2020-21 in various High Courts to legalize same-sex marriage.
Meanwhile Justice N. Anand Venkatesh of the Madras High
Court is ensuring that the Union government, State government as well as allied
entities put in place the systems required to ensure a dignified life for the
Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual and others
(LGBTQIA+) community. As a result a series of interim orders have been issued
by the judge. The State Government has
in December 2022 assured the court that a policy for protection of the rights
of the LGBTQIA+ community would be notified in three months. (The
Hindu, 09.11.2022)
It was only in April 2022, a Member of Parliament Supriya
Sule from Nationalist Congress Party (NCP) introduced a private member’s Bill
in Lok Sabha titled “The Special Marriage (Amendment) Bill,
2022” to amend the Special Marriage
Act, 1954 to include same-sex marriage. Another private member’s Bill titled “The LGBTQIA+ Persons (Protection of Rights)
Bill, 2022” was introduced by M.P. Dr.
DNV Senthilkumar from Dravida Munnetra Kazhagam (DMK). Both these Bills introduced in the
Parliament have not been debated so far.
Meanwhile
some couples in November 2022 have gone to the Supreme Court seeking
legalization of same sex marriage. Besides on 6 January 2023 the Supreme Court
of India transferred to itself all petitions on the issue of same-sex marriage
pending in various High Courts. The judicial process should start at the bottom
rung of the judiciary for any relief. The Supreme Court should have allowed the
various High Courts to first adjudicate on the issue. This would have ensured
nationwide debate at the state level judiciary, legislative assemblies, people
and media. By transferring the petitions to itself it has short-circuited the
process and set a bad precedent once again. Recall that when ABVA had filed the
first petition for repeal of S. 377, IPC in 1994 it simultaneously urged all
activist groups in India to flood the various High Courts with similar
petitions.
ABVA is of the opinion that this could
convert a broader political struggle to narrow, legalistic framework. ABVA
strongly advocates a continuous, peaceful democratic struggle of like-minded
organisations and people for getting the Charter of Demands implemented. The
judiciary has a very limited role in this regard. The Indian Parliament should
be forced to debate all issues concerning the LGBTQIA+ community. So far
Parliament has resisted this move leaving it to the courts to adjudicate the
matter. Parliament should legislate on same-sex marriage before the Supreme
Court rules on the issue. This is the least atonement Parliament could do for
human rights of the LGBTQIA+ community in India.
Shobha Aggarwal is a member of ABVA.
Email: aidsbhedbhavvirodhiandolan@gmail.com
Blog: http://aidsbhedbhavvirodhiandolan.blogspot.com/
