same sex marriage Archives - Lokmarg

‘SC Order on Same Sex Marriage is Sad, But We’ll Keep Pushing The Envelope’

By LokMarg 28th November 2023

Pamheiba Rajkumar, a member of the LGBTQ community, says that for him the SC order is a mix of disappointment and determination to keep fighting for the cause. His views

The Supreme Court has let us down by placing the fate of the same sex marriage in the legislative court. There was a glimpse of light this time and we were hopeful about some affirmative action. What the Supreme Court has done was “we recognize, we see you, but we can’t do anything about it.”

The complexity and challenges turn thousand-fold as now we must allow the legislative decide whether we are allowed to marry the person we love with all the due rights of being a partner/spouse being acknowledged. Nevertheless, we aren’t going to stay disheartened by the court decision, we are going to keep going forward and fight for the equal rights, that we deserve as a citizen of India.

Now, the battleground isn’t in the courtroom; it’s in the legislative arena. This decision has handed over the destiny of same-sex marriage into the hands of lawmakers. It’s a bit like navigating uncharted territory, with the potential for both positive and challenging outcomes.

The impact on LGBTQ rights is a tricky thing to pin down. On one hand, having the legislative process involved could mean a more democratic and representative approach to change. On the flip side, it introduces uncertainties and possible delays that we didn’t have to deal with in a direct Supreme Court ruling. I feel there is not much of an impact as of now because we must wait for the legislature to decide the future of queer couples and individuals. Since the decriminalization of Section 377, people had started talking about queers’ life. More representation is visible now. We need more allies if we want to win this fight, just as you have come up to me for my views.

ALSO READ: ‘SC Stand On Same Sex Union A Lost Opportunity’

We tried to get the recognition with the help of the existing Special Marriage Act, 1954 which was declined by the SC. Our hard-earned legal framework for same-sex marriage now faces the challenge of navigating the legislative maze, and that’s a bit nerve-wrecking.

In response to this curveball, LGBTQ rights activists and organizations are regrouping. We’re talking grassroots mobilization, community education, and building alliances like never before. The idea is not just to convince lawmakers but to build a groundswell of public support that can’t be ignored. Sharing personal stories and experiences becomes vital in putting a human face on the issue and breaking down barriers of misunderstanding.

Legal experts and constitutional scholars are now in the spotlight, helping us make sense of this new chapter. They’re digging into the potential outcomes of tackling same-sex marriage through the legislative process. While it might lack the immediate impact of a Supreme Court decision, it could offer a more enduring and widely accepted resolution. Constitutional scholars are dissecting the pros and cons, trying to figure out what this shift means for us in terms of impact and timelines.

The disappointment from the Supreme Court’s decision is real. But so is the realization that we’re entering a new phase in our fight for same-sex marriage. As an LGBTQ member, I’m not backing down. Yes, the legislative journey might be challenging, but it’s also a chance for our community to actively engage in a democratic process. It’s about making our voices heard and pushing for a resolution that reflects the diversity of our nation. Together, we’ll navigate this legislative landscape, drawing strength from our shared commitment to love, equality, and justice.

As told to Deepti Sharma

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‘SC Verdict on Same Sex Union Takes Us Several Steps Back’

By LokMarg 7th November 2023

Anjali Gopalan,founder of The Naz Foundation Trust to fight HIV/AIDS and guard the rights of LGBTQIA community, shares her views on SC verdict on same sex marriage.

The divided Supreme Court verdict on same-sex marriage has really been disappointing. This is the time when the courts could have taken the whole issue forward. They could have looked at the issue within the perspective of civil rights. This judgment, unfortunately, takes us 100 steps back.

Now the issue has been left to the Parliament. This is, indeed, highly problematique. So when will the issue be raised in Parliament – we simply don’t know that. Pray, how many issues are discussed in the current Parliament these days? For all we know, Parliament sessions are not held for the entire duration. Hence, this crucial issue going to Parliament remains a question mark.

The other disappointing thing has been the denial of the right to adopt – which should have been given to the LGBTQ community. Anyway, adoption has been made so difficult even for heterosexual couples. There are thousands of orphans in our orphanages. What is wrong if they get a loving and caring couple to take care of them? The thinking is regressive!

ALSO READ: ‘SC Stand on Same Sex Marriage is a Lost Opportunity’

The Chief Justice of India is very progressive, but, what has happened to the rest of the judges? The CJI was clearly in the minority. Having said all this, I would say that the debate has expanded the definition of discrimination – which is a good thing. Surely, as per the current law, trans-people can marry other trans-people, meaning, a trans-woman can marry a trans-man. However, a trans-man cannot marry a trans-man.

Surely, homosexuality has been decriminalized in India by law. However, if you look carefully, a large number of fundamental rights are denied to them. You have to look at society and the community. There is deep-rooted prejudice against. This is visible in sphere of employment and work, housing, education, health, among other things. This is a pattern across the country.

Families themselves compel trans-individuals to go for conversion-therapy. They force them to get married and raise a family. They hide their identity.

We are living in a democracy. On what basis can you deny them their rights? The irony is that almost all political parties seem to be on the same page on this issue. Remember, while we were fighting discrimination during the UPA government, the same phenomena prevailed. That is, when it comes to this issue, no one is a holy cow!

(The narrator has set up an animal sanctuary All Creatures Great and Small (ACGS) at Silakhari, Harayana for sick and abandoned animals. She has been a Member of the Animal Welfare Board of India. In 2005, she was short-listed for Nobel Peace Prize in recognition of her work. She has received the Commonwealth Award in 2001 for her work with marginalized communities and the Woman Achiever Award given by the Ministry of Women and Child Development, in 2007)

As told to Amit Sengupta

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SC Stand on Same Sex Marriage A Lost Opportunity

Supreme Court Stand On Same Sex Marriage Is A Lost Opportunity

By LokMarg 2nd November 2023

Ankit Agarwal, a development economist currently working with a research center in New Delhi, says a practice which goes against the current order takes years to normalize. His views

The recent judgment by the Supreme Court defeated the motion of homosexual civil unions and adoption of children by gay and lesbian couples 3:2. Many, including myself, were hopeful that the Supreme Court would pave the path for civil unions as it would provide homosexual people many provisions such as including each other as nominees in insurance plans, becoming a signatory for medical treatments, or giving them property rights. Above all, it would have provided more legitimacy to homosexual relationships.

Since Independence, members of the homosexual community have struggled to find acceptance from their family, neighbours or from the society at large. A ray of hope was provided by the Supreme Court in 2018 when homosexuality was decriminalized in India but still the everyday struggle continued as the stigma attached to being a homosexual persisted.

While people could live together without the fear of being reported or jailed after the judgment, they could not sanctify their relationship under any law. Many didn’t see any hope in homosexual relationships as there were no laws guiding the couple, no societal acceptance and no steps around adoption or making a family. Closeted men continued to marry women under pressure but continued to seek love outside marriage — a phenomenon termed as lavender marriage.

Many still quoted homosexuality as an urban phenomenon, which thankfully the Chief Justice clarified saying that homosexuality is not an urban elitist concept. However, it is also true that more people feel confident coming out in urban areas. This might be because of the availability of safer spaces, precedents and more independent lifestyles.

ALSO READ: ‘SC Gave LGBT Legal Protection; Acceptance Is Yet To Come’

A favorable ruling would have multiplied such precedents and made them accessible to remote areas (thanks to social media and internet accessibility). Gradually, it would have normalized the concept of building a home with homosexual parents and children.

Any societal practice which goes against the current order takes years to normalize and not all push has come from the legislature — an example being the Vishakha guidelines where the court took upon itself the issue of safeguarding women at workplace. However, this time the Supreme Court has left it to the legislature to make a committee which will look after the civil rights of homosexual partners. Without any definite timelines this might not see the light of the day.

I feel it is definitely a lost opportunity which could have helped people at multiple stages: it could have legitimized relationships of people who have been living with each other for years now, it could have provided both parents to a child who still is still enrolled as a single parent child in school, it could have inspired people to come out of the closet as people would have seen hope in such relationships, it could have reduced instances of lavender marriages, and lastly it could have educated parents, families, and society at large.

If the judgment would have been in favor of the community, it would have helped set a precedent by allowing homosexual people to marry, thereby setting examples that homosexual people aspire to live a life built on love like any hetro-sexual couples. It is a long arduous task ahead in the journey of normalizing homosexual relationships, but then nothing has been easy for the community so far.

(The narrator is a graduate from the University of Chicago and the Indian Institute of Technology, Roorkee)

As told to Deepa Gupta

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Govt Opposes Plea To Recognise Same-Sex Marriage

By LokMarg 12th March 2023

Centre, in its affidavit, has opposed the plea seeking legal recognition of same-sex marriage, saying that living together as partners by same-sex individuals, which is decriminalised now, is not comparable with the Indian family unit and they are clearly distinct classes which cannot be treated identically.

The Centre has filed the affidavit countering the demand made by various petitioners seeking legal recognition of same-sex marriage.
In the affidavit, Centre has opposed the plea and said that pleas seeking legal recognition of same-sex ought to be dismissed as there exists no merit in these petitions.

Same-sex relationships and heterosexual relationships are clearly distinct classes which cannot be treated identically, the government said as its stand against the petition seeking legal recognition of LGBTQ marriage.

It is for the legislature to judge and enforce such societal morality and public acceptance based upon Indian ethos, the Centre said in its affidavit and added that western decisions sans any basis in Indian constitutional law jurisprudence, cannot be imported in this context.

In the affidavit, Centre apprised the Supreme Court living together as partners by same sex individuals, which is decriminalised now, is not comparable with the Indian family unit concept of a husband, a wife and children.

Centre submitted that the principles of legitimate state interest as an exception to life and liberty under Article 21 would apply to the present case. Centre submitted that the statutory recognition of marriage as a union between a “man” and a “woman” is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based upon its own cultural and societal values which are recognized by the competent legislature.

“There is an intelligible differentia (normative basis) which distinguishes those within the classification (heterosexual couples) from those left out (same-sex couples). This classification has a rational relation with the object sought to be achieved (ensuring social stability via recognition of marriages),” the government said.

Centre submitted before Supreme Court that statutory recognition of marriage as a union between a “man” and a “woman” is intrinsically linked to the recognition of the heterogeneous institution of marriage and the acceptance of the Indian society based upon its own cultural and societal values which are recognized by the competent legislature.

Centre submits that the fundamental right under Article 21 is subject to the procedure established by law and the same cannot be expanded to extend to include the fundamental right for a same-sex marriage to be recognized under the laws of the country which in fact mandate the contrary.

Despite the decriminalization of Section 377 of the Indian Penal Code, the Petitioners cannot claim a fundamental right for same-sex marriage to be recognized under the laws of the country, Centre made it clear in its affidavit.

“Recognition of marriage necessarily brings with it the right to adopt and other ancillary rights. It is, therefore, necessary that such issues are left for being decided by the competent Legislature where social, psychological and other impacts on society, children etc., can be debated. This will ensure that wide-ranging ramifications of recognizing such sacred relationships are debated from every angle and legitimate state interest can be considered by the Legislature,” Centre said.

Adding further, the government said that marriage between a biological man and a biological woman takes place either under personal laws or codified laws and the parties entering into marriage create an institution having its own public significance as it is a social institution from which several rights and liabilities flow.

“Seeking declaration for solemnisation/registration of marriage has more ramifications than simple legal recognition. Family issues are far beyond mere recognition and registration of marriage between persons belonging to the same gender. Living together as partners and having a sexual relationship with same-sex individuals [which is decriminalised now] is not comparable with the Indian family unit concept of a husband, a wife and children which necessarily presuppose a biological man as a ‘husband’, a biological woman as a ‘wife’ and the children born out of the union between the two – who are reared by the biological man as a father and the biological woman as mother,” the affidavit said.

Countering the petitioner’s submission, the government submitted that registration of marriage of same-sex persons also results in violation of existing personal as well as codified law provisions -such as ‘degrees of prohibited relationship’; ‘conditions of marriage’; ‘ceremonial and ritual requirements’ under personal laws governing the individuals.

If marriage is to be solemnised and registered under any personal law; ‘requirements for registration’, if marriage is to be registered under the Special Marriage Act; ‘restitution of conjugal rights’; ‘judicial separation’, ‘divorce’; ‘conditions of divorce’; ‘alimony and maintenance pendente lite’, ‘permanent alimony and maintenance’; ‘expenses of marriage proceedings’; ‘disposal of property’, ‘adoption’, ‘guardianship’, etc will be affected, which is the exclusive domain of the Legislature, the government said.

The government submitted that the Parliament has designed and framed the marriage laws in the country, which are governed by the personal laws/codified laws relatable to customs of various religious communities, to recognise only the union of a man and a woman to be capable of legal sanction and thereby claim legal and statutory rights and consequences.

Any interference with the same would cause complete havoc with the delicate balance of personal laws in the country and in accepted societal values, Centre submitted.

Various petitions are being dealt by Supreme Court seeking legal recognition of same-sex marriage under Foreign Marriage Act, Special Marriage Act and other laws.

One of the petitions earlier has raised the absence of a legal framework which allowed members of the LGBTQ+ community to marry any person of their choice. According to the earlier petition, the couple sought to enforce the fundamental rights of LGBTQ+ individuals to marry any person of their choice and said that, “the exercise of which ought to be insulated from the disdain of legislative and popular majorities.” The petitioners, further, asserted their fundamental right to marry each other and prayed for appropriate directions from this Court allowing and enabling them to do so. (ANI)