NEW DELHI — Indian Prime Minister Narendra Modi in 2019 said that all the laws implemented during British rule should be made in accordance with modern norms and with society’s interests in account after adequate discussion and consideration. The government this year introduced a bill that would amend India’s criminal laws, but the measure is not inclusive.

Home Minister Amit Shah on Aug. 11 introduced the Bharatiya Nyaya Sanhita Bill 2023, Bharatiya Nagarik Suraksha Sanhita Bill 2023 and Bharatiya Sakhshya Bill 2023 in the Lok Sabha, the lower house of the Indian Parliament. The three bills would replace the Indian Penal Code of 1860, the Criminal Procedure Code of 1898 and the Indian Evidence Act of 1872.

Shah said while introducing the bill that these three laws strengthened and protected British rule, and their purpose was to punish, not to give justice.

“The soul of three new laws will be to protect all the rights given to Indian citizens by the constitution, and their purpose will not be to punish but give justice,” said Shah. “These three laws made with Indian thought process will bring a huge change in our criminal justice system.”

Shah, while introducing the bill, also said that the government has taken a very principled decision to bring citizens to the center, instead of governance. These laws, however, still fail to be inclusive. 

Chapter Five of the proposed revision to the penal code, which deals with offenses against women and children, did not talk about people who do not fall under specified categories, leaving out LGBTQ+ and intersex rights.

Section 63 of the code still defines rape as sexual assault by a man against a woman and continues to preserve gender stereotypes. The definition fails to recognize sexual assault by a man against another man or by a woman against another woman.

Another concerning section of the proposed criminal code, Section 38, would extend the right to private defense of the body to voluntarily causing the death of or any other harm to an assailant if an assault is with the intention of gratifying “unnatural lust.” The code does not define “unnatural lust” though it is very similar to now abolished Section 377 that criminalized consensual same-sex sexual relations.

The Supreme Court in 2018 decriminalized homosexuality in India, thus repealing Section 377. 

The British first introduced Section 377 and it was modelled on the Buggery Act of 1533. Thomas Macaulay in 1838 wrote the colonial-era law and it came into force in 1860. The Buggery Act defined buggery as an unnatural sexual activity against the will of God and man. 

Section 377 of the Indian Penal Code defines unnatural offenses as whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life or with imprisonment of either description for a term which may extend to 10 years, and shall also be liable to fine.

Even though Section 377 has been repealed, the new criminal laws do not include the LGBTQ+ and intersex community under the same legal protection that is available to others. The new bill fails to mention LGBTQ+ and intersex people, leaving out any protection against violent crime. 

There are no official statistics available on crimes against LGBTQ+ and intersex people, including those based on sexual orientation or gender identity, in India.

“The language of the new laws has undergone substantial positive changes to further include the LGBTQ community. After the passage of the Transgender Persons (Protection of Rights) Act 2019, the proposed new criminal laws also have gender-inclusive language,” said Krishna Deva Rao, vice chancellor of the National Academy of Legal Studies and Research in Telangana state. “For instance, the meaning of the term ‘gender’ has been expanded as section 2(9) of Bharatiya Nyaya Sanhita (the law to replace the existing Indian Penal Code 1860) now defines ‘gender’ as the pronoun ‘he’ and its derivatives are used of any person, whether male, female or transgender. The penal law in Bharatiya Nyaya Sanhita has also formally removed the controversial provision Section 377 from the IPC.”

Rao said that the government should have done a better job of further addressing the discriminatory treatment meted out to such marginalized communities. 

In an email to the Washington Blade, Rao said that despite the Supreme Court’s landmark NALSA verdict in 2014, the government has yet to provide horizontal reservations to the Transgender community.

“Despite the passage of the Transgender Persons Act 2019, the concerns of the community remain unredressed as the penalties provided therein are very low. Similarly, despite the 2014 Supreme Court verdict providing for self-determination of gender identity without having to undergo surgical intervention, the 2019 Act and related rules are interpreted in a way to mandate surgery,” said Rao. “Recently, in August 2023 Hyderabad police came under heavy scrutiny for cracking down on a begging racket. The police personnel discriminated against members of the Transgender community because they had not undergone surgery or had genitalia not corresponding to their identified gender.”

In a statement made about Chapter Five of the newly proposed Bharatiya Nyaya Sanhita Act, Rao said that the law catered to address crimes against women and children. Rao added it should have been expanded to include the LGBTQ+ and intersex community as well.

“While Section 377 has been struck down from the IPC, as per the landmark Navtej Singh Johar decision by the Supreme Court of India in 2018 the provision was only partially read down to exclude consensual homosexual relationships. By removing the provision entirely, non-consensual or illegal acts of intercourse against men as well as Transgender community are left completely unaddressed by the new penal law,” said Rao. “The arrest and medical examination safeguards under the criminal procedure have been exclusively catered to the protection of women. For instance, women survivors of sexual abuse have to be medically examined in a prescribed way, women can’t be arrested after sunset and before sunrise, etc. Such procedures should also be extended to people from the LGBTQ community. Similarly, when Transgender persons have to be examined, they should be allowed to provide their written consent for the gender of the doctor.”

Two Supreme Court judges in their 2014 NALSA vs. Union of India ruling said that Trans people fall within the purview of the Indian constitution and thus are fully entitled to the rights guaranteed therein. 

“In a country which once considered us to be a ‘minuscule populace’, the LGBTQIA+ community has been overlooked as a demographic group to be considered during any revelations of the constitution,” said Ankana Dey of Sappho for Equality, an activist forum for lesbian, bisexual woman and Trans men. “In research in 2018, the LGBTQIA+ group was one of the 12 groups in India that was least represented in any research or legislative amendments. In context to the Bharatiya Nyaya Sanhita bill, it is no different for us. However, the LGBTQIA+ movement will continue to fight for its rights and representation in legal reforms. LGBTQIA+ activists and groups will continue to navigate the laws and policies in order to bring relief of some form to the community and will continue spreading that information with a bottoms-up approach.”  

In an email to the Blade, Dey said that every time Sappho for Equality’s team is in the field, they work along the lines of advocacy and try to strike a dialogue with the legal representatives of the state such as police, lawyers and paralegal workers.

“Through these dialogues, we understood that the laws which have been passed and have not been circulated enough within the networks of legal representatives. Most of the lawyers in our state are unaware of what constitutes the NALSA judgment, The Transgender Persons Protection of Rights Act and Bill, and even the Mental Healthcare Act. The State Legal Services Authority (SALSA) categorically mentions that any person from the LGBTQIA+ community who has faced violence and discrimination has the right to free legal services from the state,” said Dey. “Albeit most of the community persons are not aware of this service and even if they are, money extortion and intimidation are grave concerns that make these services severely inaccessible. Some of these dialogues have translated into heated conversations since most lawmakers do not enjoy being told that their knowledge lacks constructive information and their work generally surrounds misinformation, stigma, and stereotypes associated with us. Despite this, we are hellbent on continuing our fight to counter the legalities that affect us negatively. We are intently striving towards working with lawyers at a regional level and sensitizing them about queer-Trans* lives and liveabilities.”

Dey said that most of these bills that would specifically address Trans lives have not been implemented since the NALSA ruling in 2014. She said there is a severe lack of implementation of these laws at the grassroots level.

“We strongly believe that with the revised IPC that deals with offenses against women and children, there is an urgent need to expand the very definition of a ‘woman,’” said Dey.

While talking to the Blade, Harish Iyer, an equal rights activist, said he hopes that the actual draft will be more inclusive for all genders and sexualities.

“I think culture is not static, culture is evolutionary. Our laws also have evolved from time to time. We have made more progressive laws. With gender and sexuality, I would hope that the changes in laws would be more inclusive for all citizens of India,” said Iyer. “It is an Indian culture to accept different sexuality. British culture was Section 377 of IPC. If we are going to define the law that is not IPC, it becomes imperative for us to follow Indian culture. We have always accepted and respected LGBTQI+ people.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

NEW DELHI — The Indian Supreme Court in 2018 decriminalized homosexuality in a landmark ruling, but same-sex marriage remains illegal in the country.

The country’s LGBTQ+ and intersex community has nevertheless continued to fight for marriage equality, and a ray of hope came from India’s highest court in 2022. The Supreme Court agreed to hear a marriage equality case, and the justices in April heard oral arguments in it. A ruling is still pending, but a debate over the country’s Uniform Civil Code has already begun.

The Uniform Civil Code would bring uniformity of civil union laws, regardless of sex or religion in the country.

India since it gained independence from the U.K. in 1947 has allowed people from different religions to follow different personal law on marriage, divorce, alimony and child custody. Under the Hindu Marriage Act, for example, if a Hindu couple wants a divorce, there will be a six-month waiting period before the court dissolves the marriage. If a Christian couple wants a divorce, the court will dissolve the marriage only after a judicial separation of two years. Muslims in India follow the Muslim Personal Law for marriage, divorce and custody of children.

The Indian government has decided to introduce a Uniform Civil Code to end discrimination in personal laws. The law would bring uniformity for civil unions across the nation, regardless of gender or religion. Uttarakhand, a northern Indian state, is the first state to draft the Uniform Civil Code. The Uttarakhand government has formed a 5-member expert committee that former Supreme Court Judge Ranjana Prakash Desai chairs for the implementation of the Uniform Civil Code.

The draft has created a ray of hope for India’s LGBTQ+ and intersex community because Desai recently told reporters the draft is ready and the panel has considered LGBTQ+ rights in the draft. Desai did not specify about the kind of rights that the panel considered.

“As far as I understand UCC, this is not only about equitable and fair and do discriminate on the grounds of sex, gender and sexuality,” said Bhanu Kumar, an event manager for LGBTQ+ Bihar and works to improve the livelihoods of LGBTQ+ and intersex people. “According to the draft, it’s also mentions every child, whether adopted or biological, will have an equal share in a deceased parent’s property, irrespective of gender, religion or sexual orientation, which is somehow going to change society, and peer pressure of society given on parent of LGBTQIA+ child, for disowning them. After such kind of law now only acceptance will get raised. Somehow divorce and house valiance will get decreased.”

While talking to the Washington Blade, Kumar said he believes the government will bring same-sex marriage under the Uniform Civil Code. He said the law would not only provide legal recognition and protection for LGBTQ+ and intersex couples, but also promote greater social acceptance and reduce discrimination against the community.

Souvik Saha, co-founder of Jamshedpur Queer Circle and People for Change, told the Blade the development of a Uniform Civil Code in Uttarakhand is an important step towards equality and inclusivity. He said the Uniform Civil Code aims to replace diverse personal laws based on religious practices with a single set of laws that govern various civil matters for all citizens of India.

“This move, if implemented thoughtfully and inclusively, has the potential to address long-standing issues faced by the LGBTQ community in the country,” said Saha. “Historically, India’s legal framework has been fragmented, with different personal laws applying to different religious communities. This has often resulted in disparities and discrimination, especially against marginalized groups, including the LGBTQ community. By drafting a UCC that considers LGBTQ rights, Uttarakhand shows a progressive approach toward recognizing the existence and rights of LGBTQ individuals.”

While recognizing the efforts of the Uttarakhand government on uniformity of laws for civil unions, Saha said the true impact of the Uniform Civil Code on LGBTQ+ and intersex rights would depend on the nature of the provisions included in the final law. He suggested the drafting panel takes a comprehensive and inclusive approach, addressing marriage equality, inheritance rights, adoption rights nondiscrimination protections and other issues. 

“As an organization advocating for LGBTQ rights, we would appreciate the positive step taken by the drafting panel while also acknowledging the challenges ahead. Our focus would be on pushing for a comprehensive UCC that goes beyond the token inclusion of LGBTQ rights to ensure substantive equality and protection in all aspects of life,” said Saha. “There is factual data and real stories of LGBTQ individuals who have faced discrimination under the existing legal framework. Lack of recognition of same-sex relationships has led to issues such as denial of inheritance, lack of access to healthcare benefits, and difficulties in obtaining legal documentation. Recognizing LGBTQ rights in the UCC is not about imposing a particular lifestyle on anyone, but rather about ensuring that all citizens have equal access to their fundamental rights and legal protections.”

According to the sources of Asian News International, a news agency in India, Uttarakhand’s Uniform Civil Code will be the template for the federal Uniform Civil Code.

Ankush Kumar is a freelance reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion. 

NEW DELHI — Colorful lights, dance, music, food and lots of guests: Welcome to the Indian wedding. 

India, a country of 1.4 billion people, has one of the world’s most ancient cultures and traditions. The country celebrates its festivals and culture in different styles and weddings are no different. In India, a wedding is not only the union of two people, but two families coming together to form a new bond. The country’s wedding industry is worth $210 billion a year.

The Indian wedding industry is continuously expanding and sees a promising opportunity if the country’s Supreme Court rules in favor of marriage rights for same-sex couples.

According to the 2012 Census, 2.5 million LGBTQ+ people live in the country, and awareness of it in society is also increasing. The Indian wedding fashion industry is also booming — it is worth $50 billion — and the market would skyrocket in no time if marriage equality comes to the country.

“Like any other industry, the Indian wedding planning industry quickly catches on to trends and opportunities,” said Vishaal S. Shah, a founding partner of Purple Chariot, an event management and wedding planning company in India. “Very soon, we will see two types of planners in the industry — those who have no emotional investment in this topic and are just here to cash in on the opportunity and, on the other end of the spectrum would be planners who see this as a beautiful space to create magic between a couple who have struggled to get legitimacy to their relationship by the state. In the long run, when the dust settles, planners who are either LGBTQ+-owned or understand the sensibilities of the LGBTQ+ community will emerge as authentic service providers beyond the contract, targets and numbers.”

While talking with the Washington Blade, Shah also said that no LGBTQ+ couple has approached him for their wedding planning yet. His company, Purple Chariot, has a strong desire to help LGBTQ+ couples plan their wedding and create memories and emotions, which he does for straight wedding couples.

“We have a vibrant circle of friends who are from the LGBTQ community,” said Shah. “While there might be surface-level differences between a straight couple’s wedding and an LGBTQ wedding, the underlying need to feel special and make everyone involved in the love that the couple experience is something common across all kinds of relationships. And this is precisely what we strive to achieve in any wedding we execute at Purple Chariot.”

Although Supreme Court’s ruling on marriage equality is pending, Shah said a positive decision would open an opportunity for the Indian wedding industry. He cautioned there would be a few big LGBTQ+ weddings and more intimate weddings with between 50 and 150 guests. Properties, service providers, and the entire ecosystem will have to sensitize themselves to these new opportunities and not just look at them as a business.

Dutee Chand, an Indian professional sprinter and athlete, in December 2022 posted a heartwarming picture on Twitter and announced her marriage with her girlfriend Monalisa. Although guest details are not available, the picture showed an average Indian wedding celebration. 

She is the first openly gay athlete in India.

While talking with the Blade, Ankit Rao, founder of ANR Weddings and Events, an Indian wedding planning company, said LGBTQ+ weddings are happening, and it’s a welcome move.

“We are happy to help them out with wedding planning,” said Rao. “Not just because of commercial angle, we see it like every wedding. People would get married whether with opposite or same sex.”

Ankit also said that his company and team would help LGBTQ+ couples in every way possible. But Rao also mentioned that he is yet to be approached for LGBTQ+ weddings. ANR Weddings and Events is one of India’s top event and wedding planning companies, and the company has been gearing up for LGBTQ+ wedding planning as well.

The Supreme Court in 2018 decriminalized homosexuality, but same-sex marriage remains illegal. 

The Supreme Court on April 18 began hearing arguments on petitions for marriage equality. The Blade extensively covered the deliberations. The marriage equality ruling is still pending, and the LGBTQ+ community is quite hopeful for a favorable verdict.

“Depending on which way the judgement goes, because we cannot be part of something that is not legal, if the Supreme Court rules for it and says it will make the law, then we will be very happy to do these weddings,” said Vithika Agarwal, founder of Divya Vithika Wedding Planners. “We have not given it a thought yet until it actually happens, so I have no idea about the potential market for it.”

Ankush Kumar is a freelance reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

NEW DELHI — The LGBTQ+ and intersex community around the world is celebrating Pride month; a month for celebrating identity, raising awareness about equal rights and promoting inclusion. 

This year’s Pride month has brought some setbacks and some success globally. Ugandan President Yoweri Museveni on May 29 signed the Anti-Homosexuality Act with a death penalty provision for “aggravated homosexuality,” but the LGBTQ+ and intersex community is looking towards India, the world’s largest democracy, with great expectation the country could extend marriage rights to same-sex couples.

During this Pride month, the Indian LGBTQ+ and intersex community is hopeful because the Supreme Court’s marriage equality arguments have ended and a ruling is pending.

India in 2018 decriminalized homosexuality, but same-sex marriage remains illegal. 

The Supreme Court on April 18 began hearing marriage equality cases, and it reserved the decision after the intense hearing. The ruling is pending before the Supreme Court’s 5-judge constitutional bench.

The central government has opposed any Supreme Court marriage equality declaration. Solicitor General Tushar Mehta, the country’s second highest law officer, has said any ruling in favor of marriage rights for same-sex couples would amount to interference in the role of the executive, and legislating on the issue should be reserved for Parliament.

Even though the ruling of the Supreme Court is uncertain as the ruling is still pending, it did not stop the LGBTQ+ and intersex community from celebrating Pride month.

Simarpreet Singh, a representative of Anchor, an LGBTQ+ students club at Birla Institute of Technology and Science in Pilani, told the Washington Blade that even though Supreme Court’s ruling is still pending, this Pride month seems different as there is higher awareness about it among Indians. While talking to the Blade, he said that this year’s Pride month would have been different if the Supreme Court had issued its ruling.

“I think it will be passed on to legislature,” said Singh, while expressing his expectation from the Supreme Court ruling. “Arguments in favor of queer marriage were strong.”

The LGBTQ+ and intersex community has existed in India since ancient times.

Many ancient texts talk about Transgender people and gay and lesbian communities. British rule over India in the 19th century brought anti-LGBTQ+ laws that led to discrimination and made the topic taboo.

Rahul Upadhyay, a member of Orenda, a gender and sexuality club at the Indian Institute of Technology Gandhinagar, told the Blade that Pride month celebrations would have been different if the Supreme Court had delivered the ruling, but that is not going to stop the LGBTQ+ and intersex community from celebrating their identity.

“When the judgment will be in our favor, there would be a huge celebration,” said Upadhyay. “But people are anyway celebrating the Pride month.”

Upadhyay also said the community is hopeful about the ruling. 

He said he followed the hearing, and he believes that even though government lawyers tried every argument against the petition for marriage equality, the foundation has been laid, and now he is waiting for the ruling that may come in July or August after the court comes back from summer vacation.

Mehta in May argued for the Indian government and said that the court is dealing with a complex subject that has a profound social impact. 

Varun, a member, and representative of Indradhanu, an LGBTQ+ and intersex resource group at the Indian Institute of Technology Delhi, told the Blade the community is quite hopeful about the upcoming judgment.

“After the 2018 decriminalization of homosexuality, I feel like Indians have moved to the early nascent stage, and ever since then the community is getting traction very quickly,” said Varun. “So, as the queer collective, we are growing in size, and more queer people are looking to connect. A positive verdict will move us in a very salient way, especially during Pride month, if the verdict had come, the celebration would have surely charged.”

Varun also said he and the community will celebrate during Delhi Pride in November if the ruling is positive.

Ankush Kumar is a freelance reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion. 

SRINAGAR, India — Kashmir, the crown of India, the world’s largest democracy, has been the center of the flourishing of Hinduism, Islam, Buddhism and other religions. 

The Transgender community since ancient times has had cultural roots in every state in India, including Kashmir, but a conservative society did not let the community spread its wings properly. Breaking all odds, Shoaib Khan finished her studies and became the first Trans person from Kashmir to work in India’s corporate world. 

Khan is a person who believes that people do not come out, but they feel the same from childhood. Her journey was never to come out, but she felt the same from her childhood.

“I was dependent on people, like my family, for lots of things,” said Khan. “When I got the ability to stand by myself, when I was independent, I started behaving the way I wanted to and I started accepting the way I was from my childhood.”

Before the India Supreme Court’s historic ruling that struck down Section 377, a colonial-era law that criminalized consensual same-sex sexual relations in the country, talking about trans people was a taboo topic for many. 

Khan told the Washington Blade it was difficult to come out because Trans people face ridicule and bullying. She believed that if one can have determination and confidence, the world starts to adjust and accept.

Khan also believes that family plays an important role, but her family’s reaction was not good when she told them about herself. Khan told the Blade that since the family knows their own from childhood, it was not a surprise for them. She stood her ground, and she is still fighting for her rights in her social circle.

Through the Blade, Khan wants to encourage other families anywhere in the world to support their kids if they are from the LGBTQ+ and intersex community.

“At least do not deprive them of their basic human rights,” said Khan. “Try to educate them, and if they gets any opportunity then these people will excel in multiple fields.”

As a Trans person, Khan’s journey to get an education was not easy. 

She faced humiliation, harassment and mental torture. When Khan was in seventh grade, someone bullied her, and when she went back home, she cried and counted the remaining days of school.

“I counted days that how many days I have to go to school to face this humiliation till 10th standard,” said Khan, while talking about her childhood. “The journey was not easy.”

Khan said society has a major role to play to make the lives of Trans people easy. She urged her community to stay strong and connect to excel in life where they are accepted.

Khan has completed her bachelor’s in commerce and master’s in business administration with a specialization in human resources. She is currently working with a corporation in India.

While talking with the Blade, Khan said that India’s Trans community is facing a lot of discrimination, not only in Kashmir but around the country. Khan believes discrimination is present because of the lack of awareness about the community, but at the same time she believes the community is seeing improvements.

“Before decriminalization of homosexuality, there was no option to choose for gender other than male or female, but now if you go to the Aadhaar link (India’s biometric ID card,) you have the option to choose between male, female and others,” said Khan. “This is a great example in that our country is leading the improvements. Our country is behaving democratically, where people have the right to choose what they are.”

Khan suggested the government should spread awareness about gender identity so that people know it is natural and people do not choose it.

While talking with the Blade, Khan thanked close friends and family who supported her throughout her journey. She said that many people have supported her, but some close ones made her competent enough to fight her way to where she is at.

“I would like to thank them for their unconditional love and support,” said Khan. “They will be happy to see my work published, where I am talking about rights and standing for my community. That is a big achievement.”

‘Journey is not easy’

Khan has worked in the corporate world for 11 years.

She began her career in the airline industry before she entered the corporate sector. Khan said her experience in the airline industry was not as good as she expected because there was no sensitization about gender. She said corporate policies are not bad, but people should be sensitized before introducing someone from the LGBTQ+ community.

While talking about her previous experience, she said she was subjected to some harassment and humiliation. Although she raised her voice and actions were taken at the time, Khan said her current corporate journey has gone well, and she feels satisfied. 

She said other members of the LGBTQ+ and intersex community feel proud of what she has accomplished, and they say she is their representative from Kashmir.

“The journey is not easy,” said Khan. “You can look on to the lives of where people from trans community or LGBTQ community have achieved success. Because they did not put themselves in a confined zone where they are subjected to humiliation only. So, they concentrated on education. I would like to give an important message to my community that you need to be educated, you need to have a light in your eyes, and where you can differentiate between right and wrong.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion. 

NEW DELHI — Oral arguments in the case that could extend marriage rights to same-sex couples in India ended in the country’s Supreme Court on May 11.

The arguments began on April 18.

“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Mukul Rohtagi, a lawyer who represents the plaintiffs, in support of marriage equality. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”

The Indian government argued against extending marriage rights to same-sex couples.

“This court is dealing with a very complex subject having a profound social impact,” said Solicitor General Tushar Mehta, who is the country’s second-highest legal official, during the arguments. “All the questions in this case must be left to the Parliament.”

It remains unclear when the court will issue its ruling.

NEW DELHI — The Indian Supreme Court on April 18 started hearing a case on whether to extend marriage rights to same-sex couples in the country. 

Chief Justice Dhananjay Yeshwant Chandrachud is heading a panel of five judges to decide if the time is now to extend marriage rights to same-sex couples in the country where being LGBTQ+ is not a crime, but a same sex couple cannot marry. 

The marriage equality case on the first day of the hearing started with a heated exchange between Solicitor General Tushar Mehta, the country’s second highest legal official, and Chandrachud. The solicitor general argued which forum should be the only constitutional forum that could adjudicate the marriage equality law. Chandrachud wanted to hear the merits of the case first. Mehta insisted on hearing the issue first.

“I am in charge. I will decide. We will hear the petitioners first,” said Chandrachud.” “I will not allow anyone to dictate how proceedings will happen in this court.”

Judges felt a little shocked when Mehta said that if that is the case, let him then take time to see if the government should participate in the hearing. Justice Sanjay Kishan Kaul, one of the five judges who is currently hearing the validity of marriage equality in India, asked Mehta if he meant that the government would not participate in the hearing.

“None of us know what a farmer in south India thinks or a businessman thinks in North India,” said Mehta.

Chandrachud argued that the court would consider any request other than adjournment. After the heated argument in the court, senior lawyer Mukul Rohtagi opened the case for petitioners.

“We are persons of the same sex, and we have the same rights as like the heterosexual groups of the society this has been held so, and we need not reinvent the wheel and only stumbling block was Section 377, and our actions were subject to criminality, and now it is gone,” said Rohtagi, who represents the plaintiffs. “If our rights are identical and then we should enjoy full array of rights as under Articles 14, 15 and 21.”

Article 14 of the Indian constitution deals with equality before the law. 

The article says that the state shall not deny to any person equality before the law or the equal protection of the laws within Indian territory based on grounds of religion, race, caste, sex or place of birth. Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth. Article 21 says no person shall be deprived of his life or personal liberty except according to a procedure established by law.

Rohtagi argued that the court should not wait for legislative action when fundamental rights are involved.

“Our lives are getting passed,” said Rohtagi. “We are getting old, and we need to be respected as in a marriage. Call them queer, call them gay. People look at them differently, and that is a violation of Article 21. A violation of right to life with dignity and also violation of Article 15 when there can be no discrimination based on caste, sex.”

While arguing, Rohtagi brought up the Respect for Marriage Act in the U.S. to support his argument about the validity of marriage equality. When the court was hearing the validity of the marriage equality case, Chandrachud made a note to restrict the discussion on the gender-neutral interpretation and evolve a civil union concept.

Menaka Guruswamy, a senior lawyer, while arguing for the plaintiffs, said she could not designate her life partner for life insurance and that people like her would keep coming to the court to redress individual grievances.

The Washington Blade last November reported that the Life Insurance Corporation of India, a public sector insurance company under India’s Finance Ministry, had said that there is no legal bar for anyone to make their same sex partner a beneficiary in insurance policies in the name of that person.

Mehta during the middle of the hearing said that the question is not granting a socio-legal sanction. It has been clearly saying no one shall discriminate against a Transgender person, including unfair treatment and denial of employment, and here trans includes LGBTQ+ and intersex and not what is understood in the conventional sense. He also said that Hindus and Muslims will be affected, and that is why states should be heard.

Chandrachud said that the notion of biological man and biological woman is absolute. The chief justice also said that it is not a question of genitals because the Special Marriage Act’s definition of man and woman is not restricted to genitals.

The Special Marriage Act is an Indian marriage law enacted in 1954 that provides a legal framework for the marriage of people belonging to different religions or castes.

Mehta argued other laws will be redundant if the marriage equality law takes effect. He also requested the Supreme Court consult all states in India for their response as marriage laws are listed in the concurrent list of the constitution that states union governments and state governments can make laws on the subjects enlisted under the concurrent list. Marriage falls under the concurrent list of the Indian constitution.

Kapil Sibal, a senior lawyer for Jamiat Ulema-I-Hind, a leading Islamic scholar organization in India, told the Supreme Court he believes in the autonomy of an individual and that everyone needs to celebrate the union of two people. But Sibal also argued that if same-sex marriage is allowed who will take care of the child? Who will be the father? Who will be the mother? Sibal said that in international examples countries reform all other laws to accommodate these things.

“I am all for same sex marriage but not in this fashion,” said Sibal. “If this is not done as a whole then let it not be done at all.”

Rohatgi said before the bench that the LGBTQ+ and intersex community has a fundamental right to get married and have it registered like heterogenous brethren of the society.

“I was amazed to hear that we are not equals and we need to be equal to stigmatized lot, and that is why court should step in, and that is why even after 377 judgment we are here,” said Rohatgi. “That is why state is telling us here that we are not equals.”

While highlighting equality and justice for everyone, Chandrachud, said that justice is to each of us, liberty to each of us, equality to each of us, and fraternity for all of us.

On April 19, the second day of the hearing, the central government filed a fresh application and urged the judges to take into account the state governments’ views since “marriage” is on the concurrent list. The central government in its application said that the Department of Legal Affairs has also written to all chief secretaries of state to submit their views on same-sex marriage in case notice is not issued to them. The central government also said that states should submit their views in 10 days so that center can present the case before the Supreme Court.

Rohatgi said that the LGBTQ+ and intersex community suffers under the majority. He said it is not the law, but a mindset that is bothering LGBTQ+ and intersex people in their daily life. Rohatgi also said that society accepts what the law is and highlighted to the judges that the LGBTQ and intersex community has no representation in the Parliament and that’s why the community has approached the court. Rohatgi also argued that constitutional morality would become a habit for the people when the same is upheld by the Supreme Court.

“State cannot discriminate against an individual on the basis of a characteristic over which the individual does not have control,” said Chandrachud. “When you see it is innate characteristics, then it counter urban elitist concept. Urban perhaps because more people are coming out of the closet. Government does not have any data also to show that same sex marriage is an urban elitist concept.”

On the third day of hearing, senior lawyer K.V. Vishwanathan appeared for the plaintiffs and argued that if one can be a son, daughter, sister, father-in-law, uncle, aunt and partner, then what holds the court to give marital status to the same-sex couples.

“It is only the sexual orientation which is beyond my control and it is not in conformity with heterosexual norms and thus will not accord you protection like the normal married couples,” said Vishwanathan. “Procreation is a valid defense to negate the right to marriage.”

Vishwanathan also argued that marriage is the coming together of two souls and to be told that it is to be looked at from procreation purpose is fallacious.

“What happens when there is a heterosexual couple when there is domestic violence. What kind of impact on children? So much for being heterosexual,” noted Chandrachud. “What about father coming back home drunk thrashing up the mother and asking money for alcohol? there is nothing absolute at the cost of being trolled. Answers to what we say in court is in trolls and not in court.”

The Supreme Court of the land also noted that the government does not have the data to prove that same-sex marriage is an urban elitist concept. 

“People come out of closet,” noted the Supreme Court.

The central government, in its application, had highlighted that the concept of marriage equality is an ‘urban elitist’ notion.

The hearing on LGBTQ+ and intersex marriage rights has attracted reactions from across the nation. 

Ranvir Shorey, a Bollywood actor, reacted to Supreme Court’s hearing and said that there is no fixed way to be a man or a woman.

“Better to think of it in terms of polarity, or scale. Those who fuss over binaries ought to remember there is an infinity between the two too,” said Shorey in a tweet. “Jurisprudence is derived from human understanding of nature’s principles. Laws exist so a society can function as a collective, while trying to preserve the rights of the individual. The more our laws move away from nature, the more at conflict we will be with ourselves.”

The Vishwa Hindu Parishad has opposed the marriage equality rights petition and said the “haste” with which the Supreme Court is hearing the petitions for legal recognition of same-sex marriage is not appropriate. The organization also said that the court should have asked for the opinion of religious leaders and experts from diverse fields.

The Bar Council of India, a statutory body that regulates legal practices and education in the country, on Sunday held a joint meeting with all the state Bar Councils in the country and passed a resolution concerning marriage equality. The Bar Council of India has requested the Supreme Court to leave the issue of marriage equality for legislative consideration.

“India is one of the most socio-religiously diverse countries in the world consisting of a mosaic of beliefs. Hence, any matter which is likely to tinker with the fundamental social structure, a matter which has a far-reaching impact on our socio-cultural and religious beliefs should necessarily come through the legislative process only, the meeting unanimously opined. Any decision by the Apex Court in such a sensitive matter may prove very harmful for the future generation of our country.” the release stated.

The Bar Council of India also said that more than 99.9 percent of people in the country are opposed to the idea of marriage equality. The Supreme Court will start hearing the government’s arguments on Tuesday.

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion. 

NEW DELHI — The Indian Supreme Court on Tuesday began to hear arguments on whether to extend marriage rights to same-sex couples.

The Supreme Court in 2018 struck down the country’s colonial-era law that criminalized consensual same-sex sexual relations.

Ankush Kumar, a Washington Blade contributor in India, reported Mukul Rohatgi, an LGBTQ+ and intersex activist, said the “LGBTQ community possess (the) same human rights as (a) heterosexual person.”

“So they have right to marry and can not be left alone,” said Rohatgi. “So we request this court to grant us relief.”

The Blade previously reported the government opposes legal recognition of same-sex marriage and has told the highest court that same-sex couples living together as partners and having a sexual relationship with the same sex individual is not comparable with Indian family unit — a husband, a wife and a child born out of the union. The government also told the Supreme Court that same-sex marriage is not compatible with the Indian ethos and morality.

Kumar reported the Supreme Court said the “notion of a biological man or woman is not absolute.”

Advocate Mukul Rohatgi: LGBTQ community possess same human rights as heterosexual person. So they have right to marry and can not be left alone. So we request this court to grant us relief. @WashBlade #SupremeCourtofIndia

— Ankush Kumar (@MohitKopinion) April 18, 2023

The Blade will provide additional coverage of the hearing that is expected to end on Thursday.

NEW DELHI — Otto Lilienthal, the world’s first pilot, once said that to invent an airplane is nothing. To build one is something, but to fly is everything. 

Despite several challenges, Adam Harry, India’s first Transgender pilot, is proving that the sky is the limit. 

When Harry was a child, his father gave him a plane toy. That toy fascinated him so much that he dreamed of one day becoming a pilot. Harry is the first pilot in India who has come out as Trans, but coming out as Trans was a journey that was full of problems.

Harry was studying in school when he first came out as a Trans person. He told his friends about his gender identity, but it was something they did not understand because of a lack of awareness about gender possibilities. For Harry’s friends, it was new. It was impossible and probably a joke for them. Harry’s friends soon started to treat him differently.

According to the 2011 Census, India has 488,000 Trans people. Since the British colonial era, the Trans community has faced discrimination, prosecution and isolation. Even after the Supreme Court’s verdict to recognize Trans people as the third gender in 2014 and the passing of the Transgender Persons (Protection of Rights) Act in 2019, a lack of awareness and acceptance persists in the country.

Harry was 17 when he first told his family, neighbors and other relatives about his gender identity. His parents thought it must be a disease and there should be a treatment that could cure him. They visited various doctors who claimed that they had treated patients like Harry and that their treatment could fix him.

“They (parents) did not have much idea about Transgender people,” said Harry during an interview with the Washington Blade.

But it was not the only problem Harry had to face. Becoming a pilot in India is a privilege, and not many people from middle-class homes can afford it because the courses are expensive. 

Harry’s middle-class family had limited resources to pursue his dream. He worked different jobs, but they were not enough.

It costs an average of $48,000 to become a small aircraft pilot in India, and the cost is much higher to obtain a commercial pilot license. But coming out as a trans person and becoming a pilot created another issue for Harry. 

The Directorate General of Civil Aviation, a government body that regulates civil aviation in India, denied Harry a license to fly. DGCA based the decision on gender dysphoria and hormone replacement therapy.

“I faced lots of difficulties when I was going through a medical test,” said Harry. “So getting a license in India was the hardest part when comes to a Transgender person.”

Harry was female at birth, but underwent sex-reassignment surgery in 2021. He had to face extensive medical examinations, and Harry ultimately failed the test after doctors asked him several transphobic questions.

The DCGA asked Harry to go through the medical test again once he completed his therapy, but it is impossible because he would need this treatment throughout his life.

The denial of Harry’s license came up in the Upper House of the Indian Parliament. Minister of State for Aviation V. K. Singh said the DGCA does not have any restrictions on a Trans person obtaining a pilot license. He also noted hormone therapy does not disqualify a person from flying.

“Use of hormonal replacement therapy is not a disqualifying criteria if the applicant has no adverse symptoms or reactions,” Singh said. “However, flying duties are not permitted while the dose of hormonal treatment is being stabilized or until an adequate physiological response has been achieved and the dose no longer needs to be changed.”

The minister further stated the norms are in line with Federal Aviation Administration and European Union Aviation Safety Agency.

Harry’s story started a discussion within Indian aviation, and the DGCA in 2022 announced a new policy that says trans people who have completed transition-related therapy or have undergone sex reassignment surgery can be declared fit to fly. The new framework also allows any ongoing hormone therapy and will not be a ground for disqualification.

Harry loves his country and wants to fly for Indian airlines, but he has faced challenges in the country that include being a Trans pilot. He now prefers to work with U.S-based or European airlines because they are more Trans-friendly.

“Right now, I have received a scholarship from Delta Air lines. I am still trying to get an interview with Delta,” said Harry while talking with the Blade. “Probably once I complete my CPL (Commercial Pilot License), I will try reaching out to airlines companies across the world. I personally prefer airlines companies in the United States, because they are more trans friendly than aviation companies in India.”

Harry told the Blade that Indigo and Air India are among the Indian airlines that do celebrate Pride, but he questioned whether these companies are actually Trans-friendly in terms of employment. 

“I will still try in India, but I mostly prefer the U.S. when it comes to employment,” said Harry.

“Chiragu” (“Wings”) is a documentary about Harry’s life that began filming in 2019. In the meantime, he continues to encourage fellow trans people who may want to become pilots in India.

“Keep trying for your dreams. Maybe this whole world will be against you, but whatever happens, it may take some more time till we will be comparable to others,” said Harry. “We are not that privileged, it will be very difficult, and roads to our success will be very complicated. Keep trying, and one day, we will achieve our dream and will proudly say that we made a change in our society.”

Ankush Kumar is a reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at mohitk@opiniondaily.news. He is on Twitter at @mohitkopinion. 

NEW DELHI — The world’s largest democracy is at the crossroad of monumental change. 

India’s more than 2.5 million LGBTQ+ and intersex people are looking at the country’s Supreme Court with great hopes because it will hold another hearing on marriage equality on April 18.

The five justices on March 13 heard the issue.

The Supreme Court last Dec. 14 asked the Indian government to respond to two petitions seeking a transfer of marriage equality petitions before the Delhi High Court to itself. The government on March 12 filed a response to the Supreme Court.

The government opposed legal recognition of same-sex marriage and told the highest court that same-sex couples living together as partners and having a sexual relationship with the same sex individual, which is now decriminalized, is not comparable with Indian family unit — a husband, a wife and a child born out of the union. The government also told the Supreme Court that same-sex marriage is not compatible with the Indian ethos and morality.

According to the response filed by the government in the high court, the institution of marriage is crucial in India. It provides a sense of safety, security and companionship for the members of society. It plays a crucial role in the rearing of children and impacts their upbringing. While objecting to same-sex marriage in India, the federal government said that marriage between a biological male and female fall under personal law or laws — the Hindu Marriage Act of 1955, the Christian Marriage Act of 1872, the Parsi Marriage and Divorce Act of 1936, the Special Marriage Act of 1954 and the Foreign Marriage Act of 1969.

The April 18 hearing will be live telecast on the Supreme Court’s website and YouTube.

“The Indian Constitution gives equal rights to everybody. You cannot differentiate based on the gender of the people. Whether it’s the Transgender rights bill or abrogation of section 377, everyone has recognized the presence of the LGBTQ community,” said Vijay Nair of Udaan Trust, an organization based in Mumbai. “How can you discriminate just based on male or female? The constitution does not discriminate based on gender, but the people running the constitution are now doing that, which is very unethical.”

Nair, while talking with the Washington Blade, said that he has faith in the Supreme Court as the court will give the verdict based on justice prevailing for anyone in the society, whether it is positive or negative or neutral, the court will deliver justice and will treat everyone equally.

Law and Justice Minister Kiran Rijiju, while appearing on India Today Conclave, a news TV program that invites experts, politicians and think tanks to discuss different issues in the country, on March 18 said Parliament must debate same-sex marriage and draft a law because it has representatives from across the country. Rijiju suggested that the Supreme Court could later change the status if it finds the decision against the spirit of the constitution.

Nair, while reacting to Rijiju’s statement, told the Blade that it is always good to take people on board because it should be a consultative process. 

“People should not be unaware of things and it is always good to have people’s consultation,” said Nair. “We are okay with the process.”

Sadam Hanjabam, founder of Ya_all, an LGBTQ+ and intersex rights organization based in Manipur, told the Blade the government still looks at the family from the angle of male and female.

“If we look into the judgment of section 377, where it was said that homosexuals were criminal. But again, the judgment conflicts this time when saying two people who love each other must be a man and a woman. The government needs to reconsider the fact from the point of human beings rather than just gender,” said Hanjabam. “It is a very long route going through the Parliament as tried earlier. Many of the members of Parliament are unaware of this issue. So even if it is discussed or brought up in the Parliament, it is a new issue to them, and it is not an important issue to them. So, the best way is to go to the Supreme Court because it was the Supreme Court who removed section 377.”

The Supreme Court in 2018 struck down Section 377, a colonial-era law that criminalized homosexuality in India.

While there is a wide discussion going on in the country on same-sex marriage, a group of former judges on March 24 publicly opposed marriage equality.

“We respectfully urge the conscious members of the society including those who are pursuing the issue of same-sex marriage In Supreme Court to refrain from doing so in the best interest of Indian society and culture,” reads the statement. “The marriage, as well as the family system in India, is sui generis. In our humble opinion, legalizing same-sex marriage will strike at the very root of the family system and thus will have a devastating impact on society at large.”

Ankush Kumar is a freelance reporter who has covered many stories for Washington and Los Angeles Blades from Iran, India and Singapore. He recently reported for the Daily Beast. He can be reached at [email protected]. He is on Twitter at @mohitkopinion.