“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.