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Indian Supreme Court declines to include LGBTQ+ people in sexual harassment law

Activists have criticized ruling, urge corporations to enact policies

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The Indian Supreme Court (Photo by TK Kurikawa via Bigstock)

NEW DELHI — After the Indian Supreme Court ruled against marriage equality in October, it declined to include LGBTQ+ people in regulations against sexual harassment.

Justices Bangalore Venkataramiah Nagarathna and Ujjal Bhuyan said the existing 2013 law against sexual harassment in the workplace cannot be made gender-neutral in order to include the LGBTQ+ community. The judges observed the focus will be lost from the principal goal of preventing sexual harassment of women in the workplace if such amendments to the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are made.

“If a person other than an ‘aggrieved woman’ is subjected to sexual harassment, the answer does not lie by amending the existing regulations,” the judges who heard the petition said. “It would be inappropriate to direct the amendments to be made to the 2013 regulations as otherwise the whole purpose and object of the said regulations would be diluted and denuded of its effect.”

Vibha Datta Makhija, a senior activist, appeared before the bench for the plaintiff and said the regulations should provide gender-neutral protections and include LGBTQ+ people. She also said the regulations are inadequate, given LGBTQ+ people and other groups are constitutionally recognized. The Supreme Court, however, relied upon previous rulings that stated a constitutional court would not issue a “writ of mandamus” to a legislature or to a rule-making body to enact a law on a particular subject.

The Supreme Court mentioned regulation of the 2013 law was made in view of Clause 3 of Article 15 of the Indian constitution. Clause 3 of Article 15 focuses on “women” and “children.” The clause states nothing shall prevent the State from making any special provision for women and children. Article 15 of the Indian Constitution talks about the prohibition of discrimination on grounds of religion, race, caste, sex, or place of birth.

The Supreme Court in 2014 issued a historic ruling in the case of the National Legal Services Authority vs. Union of India, which recognized Transgender people as a third gender. There is, however, no law to protect Trans people from sexual harassment in the workplace. 

A 2015 report notes 44.7 percent of trans people faced 2,811 incidents of violence in India.

The Swasti Health Resource Center in research it conducted in different parts of India found four in 10 Trans people experience some kind of sexual abuse and associated trauma before they turn 18. The National Human Rights Commission of India in another study found roughly 52 percent of Trans people faced harassment by their school classmates and 15 percent of trans people suffered mistreatment at the hands of their teachers.

Current Indian laws do not define a sexual offense committed by anyone, irrespective of severity, that does not fall under “rape,” and may be filed under Section 377 of the country’s penal code that deals with “unnatural sex.”

The World Bank Group in 2014 published a report titled, “The Economic Cost of Homophobia and the Exclusion of LGBTQ People: A Case Study of India.” The report noted homophobia and exclusion of LGBTQ+ people from the workplace causes a 1-1.7 percent loss of GDP. It also indicated 56 percent of LGBTQ+ people reported discrimination in white-collar jobs in the country. 

Forty percent of respondents who participated in the Indian LGBT Workplace Climate Survey 2016 said they suffered harassment and had experienced homophobic comments. The National Human Rights Commission of India reported 92 percent of Trans persons are denied the right to participate in any form of economic activity. They were denied jobs, and 18 percent of respondents suffered physical abuse.

“The statements made by the Supreme Court judges, it is quite clear that just as marriage equality, they are saying they do not want to dilute any existing laws,” said Harish Iyer, a prominent equal rights activist in India. “Judges are not opposed to the idea that sexual harassment of LGBTQ people needs to be prevented.”

Iyer told the Washington Blade that corporations need to step up their processes and practices to include LGBTQ+ people. Iyer said they should have an internal inquiry board to prevent any sexual harassment of LGBTQ+ workers.

“Corporates can set up the same POSH committee for internal investigation on matters relating to men and LGBTQI people,” said Iyer. “This does not impede what corporates can do to protect the lives of LGBTQ workers.”

Shoaib Khan, the first Trans woman from the Indian state of Kashmir to succeed in India’s corporate world, told the Blade the ruling is quite unfortunate.

“It is not about the particular gender. The harassment is not subjected to a particular gender, it is subjected towards a person,” said Khan. “I feel like the Indian Constitution should overthink and overrule this judgment.” 

“Multiple companies are following the code of conduct policies in terms of protecting sexual harassment at the workplace irrespective of gender, but those are all multinational companies,” added Khan. “Indian companies need to consider the fact that we as minorities have suffered a lot, so excluding us from protecting our rights at the workplace is something insane.”

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.

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India’s Jharkhand state to create welfare board for LGBTQ+ community

Top official unveiled plans on Jan. 16

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Map of India's Jharkand state (Image by Bigstock)

RANCHI, India — India’s mineral-rich Jharkhand state is ready to set up a welfare board for the LGBTQ+ community. 

Kripanand Jha, secretary of the state’s Women, Child Development and Social Security Department, on Jan. 16 told local reporters that work has begun to create the welfare board for the LGBTQ+ community in Jharkhand. 

State government officials says the board will exclusively work toward the welfare of the community. Jha said the board will soon be set up and activated under the chairmanship of the Chief Secretary at the state level.

“At district level, respective deputy commissioners will head the board,” he said. “A delegation of LGBTQ (people) in the past met us with this demand to work on issues concerning their welfare in a focused manner. Government has decided to work in that direction.”

Unlike other states in India that include Tamil Nadu, Kerala, Karnataka, Maharashtra, Gujarat, Rajasthan, Chandigarh, Uttar Pradesh, Bihar, West Bengal, Tripura and Mizoram, Jharkhand does not have a Transgender-specific welfare board. The unavailability of Trans welfare boards in the state has created serious problems for Trans people who lack access to social security, education, housing, employment, health care and skills training programs.

Jharkhand’s government, the Jharkhand Mukti Morcha, the party that Chief Minister Hemant Soren chairs, is in a coalition with the Indian National Congress, the national party that opposed marriage equality in the Supreme Court.

Jharkhand has been the land of tribals, forests and minerals for centuries, yet the state is facing development issues. 

In some indigenous tribes of the state, such as the Ho tribe, homosexuality has been acceptable for years. 

Homosexual men are called “Kothi Panthis,” and there is no stigma attached to it. A 2001 report notes the Ho tribe’s population is approximately 700,000 and it is the fourth most numerous tribe in the state, but Jharkhand still has no welfare board to implement policies for the LGBTQ+ community. 

The state’s LGBTQ+ community has “Other Backward Caste II” or OBC II status. 

The Indian government uses OBC as the collective term to classify castes that are educationally and socially excluded from society and offers policies — quotas in government jobs and education — to bolster their position in society. Jha told the local media that Soren’s government is preparing an integrated plan from which the community will benefit.

“If the government is trying to set up an LGBTQ welfare board, I think is fantastic,” said Souvik Saha, an LGBTQ+ activist and founder of People for Change, one of the premier organizations in Jharkhand. “It is a fabulous step if the government is serious about considering the community. In terms of understanding the problems of the community and looking beyond the understanding of Transgender people.” 

“Till now, the entire understanding of the community was limited to ‘T,’ the Transgender people, and there was not much idea about what others stood for, even under the trans community, there was not much idea about intersectionality and how they impact,” added Saha. “So, if the government has said that it is a positive step and it is a welcoming step.”

While congratulating the Jharkhand government, Saha suggested the government should have consulted LGBTQ+ organizations in the decision-making process because they better understand the community’s situation. 

Saha told the Blade that if the government is working with the LGBTQ+ community, the upcoming board should work on issues that include awareness and education about the community in all government departments, schools, police, legal departments.

“They are not aware of the community as of now,” said Saha. “For them the entire understanding stops at Transgender people because of the Transgender Protection Act, there is no separate act for LGBTQ people.” 

“The first investment the government should make is to make people aware of the entire spectrum of the community,” added Saha. “The challenges that the LGBTQ community faces in Jharkhand are multifold.”

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. 

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Bollywood movie highlights plight of Transgender Indians

‘Safed’ premiered last month

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"Safed" movie poster (Photo courtesy of Meerra Chopra's X page)

MUMBAI — Transgender Indians are one of the country’s marginalized communities that often face abuses, ridicule and a denial of basic human rights. Although the Hindi film industry, often known as Bollywood, releases more than 1,000 movies every year, it has not made many movies to depict the pain of the Trans community, which is generally considered taboo in the country. 

“Safed” — a Bollywood movie that means “white” in Hindi — last month created a buzz in India and around the world. The movie featured Trans people and a widow, both of whom are ostracized in the country. 

The film’s story depicts a lonely, abandoned Trans person and a widow who finds solace in each other. Indian Bollywood actresses Meera Chopra and Abhay Verma starred in the film and successfully depicted the discriminatory behavior in society against Trans people and widows.

“Everyone wants to make a film that appeases masses, shows everything in a positive way with a happy ending, but making films like ‘Safed,’ which portrays the dark side of the society, is courageous,” said Barkha Bisht, the Indian actress who played the part of Radha, a Trans person in the film. “People are saying that we have done this movie for the love of the people, but I do not agree with that, we did it for a reality check to people. In our society, we have a section of people, that often face ostracization. People do not even want to look at them. More than love, we need empathy from people.”

While talking to the Indian media during the promotion of the film, Verma said this film talks about equality for all in society. Verma played opposite Chopra, her Trans co-star who played the part of a widow.

“It’s all about creating a balance in the society. We have tried our best with pure intentions, and our work should be taken purely by the moviegoers,” said Verma. “Our goal is to portray the reality of the society and if that conveys successfully, I would consider my work done.”

Even though “Safed” is not the first film that depicts the misery of Trans Indian people, often in earlier times, the Indian film Industry has shown Trans people in funny roles, in criminal roles or horror movies, which further leads to more discrimination. 

In 1999, a Hindi film, “Sangharsh,” performed well on the silver screen in India and around the world.

The film successfully portrayed a Trans character in a negative role that led to further isolation of the community in India. Many critics believed “Sangharsh” added a third gender character on the big screen, but the role of Ashutosh Rana as a Trans villain was so horrific that many critics believed the portrayal of a sadistic serial killer left a lasting impact on society at large. 

In 2011, the film “Murder 2” also brought a similar storyline and invoked transphobic characteristics of the film. 

Emraan Hashmi, one of India’s A-listed actors, played the role of an ex-police officer who chases a sadistic Trans woman who murdered sex workers. The film performed well at the box office and led to further demeaning of the Trans community.

Bollywood movies also portray trans people as laughing stocks in many films. 

In films such as “Kya Kool Hain Hum,” “Masti” and “Partner,” Trans characters were in comical setups that often invoked stereotypes in society. Indian films have played a very important role in society since the advent of the big screen in the country, often impacting society, be it romance, crime or culture.

India’s one of the most prominent actresses, Miss India and Miss Universe runner-up Celina Jaitly, while talking to the Washington Blade said combating discrimination of any kind requires a change not just in laws and policies but in hearts and minds too. Changing attitudes is never easy, she said, but it has happened on other issues, and it is happening already in many parts of the world on this one.

“It begins with often difficult conversations,” said Jaitly. “One of the best ways to have these difficult conversations is also via films. Indian cinema has played an important role in conditioning the mindsets of Indians of all backgrounds as films have a reach towards all genres of society, hence films based on taboo topics are of utmost importance.” 

“Movies like ‘Safed,’ ‘Super Deluxe,’ ‘Chitrangdha: The crowning wish’ or my own film ‘Seasons Greetings:  A Tribute to Rituparno Ghosh,’ play a very important role in tapping into the subconscious even though the majority of people may watch them just for entertainment,” she added.

Jaitly also played an important role as the United Nations Equality Champion for the Trans community in India and around the world. 

While talking to the Blade, she said cinema is like literature it is the reflection of society and not only does it influence society, but has a great impact on successive generations.

“The problem faced by LGBT films are not the films themselves but the general mindset towards the LGBT community,” said Jaitly. “Most Indian audiences remain hugely conservative; the biggest block is that the society is not ready to educate themselves about homosexuality and its acceptance on any level. Reasons could be anything from religious to sheer ignorance.” 

“Despite decriminalization of homosexuality the stigma remains strong as ever and it is definitely not easy to dispel common misconceptions and negative stereotypes,” she added. “In addition, filmmaking in India is more about ‘return of investment,’ business and Rs 200 crore benchmarks as a result LGBT films end up becoming small, parallel initiatives.”

Celina Jaitly (Photo courtesy of Celina Jaitly)

Jaitly said India needs more movies like “Safed.” She said cinema can be used as a tool to proactively combat harmful messages, educate, audiences about pressing social issues and encourage critical thinking.

Jaitly advised the Indian film industry and film makers to stop creating Trans characters and storylines without meaningful Trans inputs. 

“Filmmakers who are interested in making films on the Trans community they need to focus on the project so that audiences don’t just casually react to their films, but also engage with them on a deep, emotional level,” she said. “It is also important to cast Trans people in Trans roles: Only they should portray and become the beacons of reflections of the agonies and ecstasies of their journeys, no matter what the script demands.” 

Jaitly added filmmakers hold supreme responsibility in being sensitive, empathetic and rational while attempting to make films on Trans issues. 

“The underlying principles of treating people respectfully and equally is a no-brainer and requires no special education,” she said. “Cinema like literature is the reflection of society and not only does it influence society but has a great impact on successive generations.”

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. 

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Trans people seek government job consideration in India’s Maharashtra state

Court petition filed on Nov. 29

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(Washington Blade photo by Michael Key)

Ancient texts in India have recorded the history and cultural importance of Transgender people, but the community is still marginalized and vulnerable in the country. Although the government offers many vulnerable castes a specific number of slots for education and government jobs, Trans people still have no such benefit and continue to face discrimination across the nation. 

Three Trans people from Maharashtra state on Nov. 29 filed an application to the Maharashtra Administrative Tribunal seeking slots for Trans people in government jobs and a “third gender” option in online job applications. Two applicants had applied for police officer posts, while the other had applied for a revenue officer post — both of which are government jobs in India.

While hearing the application, the Maharashtra Administrative Tribunal, a court that has all the powers of the High Court, said it cannot direct the state government to give slots for Trans people in public employment and education. The Maharashtra Administrative Tribunal did say, however, that the state government should take more steps towards inclusivity for the community in mainstream society.

Maharashtra’s government told the tribunal it would not be possible to provide slots to Trans people in government jobs or education. 

The Maharashtra Administrative Tribunal in a 26-page order directed the state government to give applicants the necessary points to qualify for the job if the applicant has secured 50 percent of the total marks for the concerned post. The tribunal also directed the government to provide age relaxation to Trans applicants if they earned 45 points.

In India, every government job seeker goes through an examination to qualify for the job. Government job examinations are one of the toughest in India because there are millions of applications for a few positions, resulting in the need to secure higher marks to get a position.

More than one million applicants applied for 18,331 police officer positions in 2022. The government, however, provides slots to backward class applicants and gives points relaxation in examinations. Trans people in India are most marginalized and vulnerable with no slots in education or employment.

Retired Justice Mridula Bhatkar, who chairs the Maharashtra Administrative Tribunal and member Medha Gadgil in the ruling said the fact that not a single Trans person who has come out received a job in the government sector speaks volumes.

“The Transgender people are humans and are citizens of our great country who are waiting for their inclusion in the mainstream,” said the tribunal. “We have historical, mythological and cultural instances of eunuchs and their participation in political, social or cultural fields.”

The tribunal also said trans people are in the minority. 

Although the majority forms the government, the majority cannot suppress the rights of marginalized sections of society. The tribunal further added the situation in which the Trans community finds itself is worse than what women faced in the past while demanding equality.

The tribunal highlighted the mere acknowledgment of the separate identity of Trans people was not enough, but they also need to be given opportunities in government jobs.

“The State of Maharashtra has been very progressive in its thought and culture,” said the tribunal. “Therefore, it is desirable on the part of the government to take necessary measures to enable these Transgender applicants to get jobs in the government sector.”

The tribunal mentioned Indian Constitution prohibits any kind of discrimination based on sex under articles 15 and 16.

“To get into public employment is a handicapped race for Transgenders,” said the tribunal. “Though they are not physically disabled and are able-bodied persons, their activities, actions, growth are paralyzed due to the negative approach of society, family in all schools, colleges in all places at all levels.”

While representing the petitioners, Kranti LC, a lawyer, said that the Indian states of Tamil Nadu, Chattisgarh, Karnataka, Jharkhand and Bihar have provided reservations to Trans people. The tribunal, however, noted it understands the state has reached the limit of vertical slot of 62 percent, but ordered the law can reach equality and harmony through social engineering.

“The courts are for justice and cannot ignore any societal problem when placed before it,” said the tribunal. “Under such circumstances, though courts are not the lawmakers while interpreting the law, a legally permissible solution is to be applied to meet the ends of justice.”

According to the Indian Supreme Court’s 1992 Indra Sawhney vs. Union of India ruling, nine judges upheld the 50 percent ceiling on slots and denied slots in promotion in government jobs. This means no government agencies or institutions can give slots more than 50 percent of total job openings. Maharashtra state already crossed the limit.

“It is very unfortunate, because Transgender people are one of the most vulnerable people in India, and of the most marginalized population in our country,” said Kalki Subramaniam, a Trans rights activist and founder of Sahodari Foundation, an organization that works for Trans Indians. “For the horizontal reservation, we need to get the support of our government. We need to sensitize our members of Parliament. I think, all political parties do support (the) Transgender community, and do understand the plight of the community and difficulties we face.”

Kalki told the Washington Blade the community needs to work hard. She said the community needs to start campaigning for horizontal slots. She said the community needs to MPs to get the necessary support for it.

While talking to the Blade, Rani Patel, an activist and founder of Aarohan, a nonprofit organization that works with Trans Indians, said that it is right that the Trans community needs to have reservations in jobs and education so that they can be mainstreamed in the society.

“I have been working with the Transgender community for last 11 years in Delhi. We had worked very hard for the scraping of section 377,” said Patel. “All the equality and rights given by the Supreme Court of India is of no use until and unless they are not provided with reservation, because there is a stigma in the society against the Transgender people, the community feel rejected and detached from the society.”

Patel told the Blade that only a few Trans children are getting an education in the country. She said most of the Trans people in India need to be skilled in whichever field for which they have an interest. Patel further said that while getting skills, the government should provide slots to Trans people, otherwise giving skills will be of no use.

Patel and Aarohan were instrumental in drafting the Delhi government’s trans bill.

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.

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Indian Supreme Court agrees to consider petition to appeal marriage ruling

Justices on Oct. 17 ruled against nuptials for same sex couples

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The Indian Supreme Court (Photo by TK Kurikawa via Bigstock)

NEW DELHI — The Indian Supreme Court on Nov. 23 agreed to consider an appeal of last month’s ruling against marriage equality.

While appearing before Chief Justice Dhananjay Yeshwant Chandrachud’s bench, Justices Jamshed Burjor Pardiwala and Manoj Misra and former Attorney General Mukul Rohatgi referenced the petition. Other lawyers who participated in previous marriage equality cases were also present.

Rohatgi requested the Supreme Court allow the appeal to be heard in open court.

“Apart from this, majority and minority, both views have held that there is discrimination against LGBTQ+ couples,” said Rohatgi. “If there is discrimination, there also has to be a remedy. This is why we have pressed for an open court hearing.”

Chandrachud said he has yet to review the petition and request for an open court hearing.

Udit Sood and other lawyers who had appeared in the original marriage equality case filed the appeal petition. Review and curative petitions are generally not heard in an open court in India, but rather in a closed setting and the chamber of the judges. They can, however, allow open court hearings if they find merit in the appeal petition.

The petition argued the ruling suffered from “the errors apparent on the face of the record,” and the earlier verdict was “self-contradictory and manifestly unjust.” 

“To find that the petitioners are enduring discrimination, but then turn them away with best wishes for the future, conforms neither with this honorable court’s constitutional obligation towards queer Indians nor with the separation of powers contemplated in our constitution,” reads the petition. “The majority judgment warrants review because it summarily disregards the foregoing authority to make the chilling declaration that the Constitution of India guarantees no fundamental right to marry, found a family, or form a civil union.”

According to the rule, the review petition should be filed before the same set of judges who considered the original case. 

Justice Shripathi Ravindra Bhat, who was in the five-judge bench led by Chandrachud and heard the original marriage equality case, retired on Oct. 20. For the review petition to be heard, Chandrachud will have to add a new judge to the original bench. In the Supreme Court, the chief justice decides the roster inside the judge’s chambers. 

Five judges led by Chandrachud in a 3-2 verdict on Oct. 17 ruled against the recognition of same-sex marriage in India. 

The Washington Blade reported the Supreme Court recognized it cannot make laws, but can only interpret them. Chandrachud in the ruling noted that the court must be careful not to enter the legislative domain.

The Supreme Court’s ruling was a setback for the LGBTQ+ community in India and across the world. Many prominent LGBTQ activists and high-profile allies expressed their disappointment.

“I think one of the important things that while the judges said the marriage is not a fundamental right, we want to stress upon the freedom to form a union. humans are social beings,” said Harish Iyer, an equal rights activist in India and one of the original plaintiffs in the marriage equality case. “The truth is that companionship is a human need. And if companionship is a human need, legalizing it will become a necessity from that point of view.”

Harish also told the Blade in an interview that a more nuanced understanding of marriage — one that is not from the lens of being an institution, but rather from the more personal lens — is required. Harish has yet to join the appeal, but said he plans to become part of it.

He said he is not hopeful the appeal petition will succeed.

“I am hopeful of the fact that things will get better, and it will be reviewed,” said Harish. “If they admit it, it will have a fresh take on the judgment and possibly it would be 3-2 in favor of marriage equality.”

Rajesh Srinivas, executive director of Sangama, a Bengaluru-based organization that works for sexual minorities in India, told the Blade said the plaintiffs can argue in court, but nothing will come out of their appeal.

“If you look at the review petition historically, I think it is going to be a long fight,” said Srinivas. “I do not think the government will move an inch, and see where it goes.”

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.

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Activists push for LGBTQ+-inclusive India penal code

Country’s government hopes to replace colonial-era criminal statutes

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Indian flag (Photo by Rahul Sapra via Bigstock)

NEW DELHI — Indian Home Minister Amit Shah on Aug. 11 introduced three bills that are set to replace colonial-era criminal laws. 

The proposals would replace the Indian Penal Code of 1860 with the Bharatiya Nyaya Sanhita, the Code of Criminal Procedures of 1898 and 1973 with the Bharatiya Nagrik Suraksha Sanhita, and the Evidence Act of 1872 with the Bharatiya Sakshya Bill. The Washington Blade in September reported these bills are not LGBTQ-inclusive.

An October report notes a parliamentary committee reviewing bills that would replace India’s penal codes is likely to recommend including gender-neutral provisions. According to people aware of the development, the committee will recommend the Indian government consider criminalizing non-consensual sex between men, women or Transgender people.

The Hindustan Times reported the Home Affairs Committee is also likely to recommend “community services” and “life imprisonment” and other terms are better defined. The standing committee will send the report to the Home Ministry after it finalizes it. Although the report will not be binding, it will have a sweeping effect because the Indian government has said the bills would go to the parliamentary committee that Brij Lal, a Bharatiya Janta Party member who is in the Parliament’s upper house, for review.

The Supreme Court in 2018 in a landmark ruling decriminalized consensual same-sex sexual relations. Section 377, a colonial-era law that criminalized homosexuality, resurfaced during parliamentary committee discussions. 

Sources who spoke with the Hindustan Times indicated some of the law’s provisions remained applicable in cases of non-consensual sex between men, women or trans people after Section 377 was struck down. The new Bharatiya Nyaya Sanhita bill would eliminate any reference to Section 377, and there would not be a provision for non-consensual sex against men, women or Trans people. The committee will, therefore, suggest the government include Section 377 in the new penal codes.

The British first introduced India’s penal code in 1860. The government adopted it after independence in 1947 and has amended it 77 times.

The penal code deals with criminal offenses in India, while the Criminal Procedure Code deals with the administration of substantive criminal laws. The Indian Evidence Act deals with the set of rules governing the admissibility of evidence in the Indian courts.

Section 63 of the Bharatiya Nyaya Sanhita bill still defines rape as sexual assault by a man against a woman. It does not recognize sexual assault by a man against another man or by a woman against another woman. Sexual offenses in India are not gender-neutral under law, and as a result the number of rape cases by a man against another man go largely unreported. There are no official statistics available on rape cases against LGBTQ+ people in India. 

“Our community is not represented in the committee, so we do not know the final decision of the panel,” said Prijith Pk, an LGBTQ+ activist and diversity manager for a corporation in Kerala state in southern India. “We suggest and request an inclusive committee that can consider the concerns of the community.”

Pk during a telephone interview with the Blade said there are concerns about laws that will deal with non-consensual sex against men because it could be misused against the community as the country’s British colonizers did in the past. Pk said MPs should consult with the community on how to make the measure inclusive.

“Our opinions also matter,” he said. “They have to consider our identity. They have to consider our rights too.”

Sudhanshu Latad, assistant advocacy manager for the Mumbai-based Humsafar Trust, an organization that promotes LGBTQ+ rights in India, said any law that considers gender should be equitable.

“As an organization, we feel that remedies available for any sexual offenses should be equitable and not equal. Only then true equality can be achieved,” said Latad. “There should be a circular for the police in the country to conduct sensitization within the law enforcement individuals.”

Latad also dismissed the possibility of the misuse of the proposed law against the LGBTQ+ community and said any statute could be misused against anyone (and this misuse) has nothing specifically to do with the community.) He did say, however, any potential misuse could harm the other party.

“I do not think this is any different in this situation,” said Latad. “The non-consensual sex is basically rape and rape of any identity or gender should be punished.”

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. 

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Indian activists urge lawmakers to back marriage equality legislation

Supreme Court’s Oct. 17 ruling sparked widespread criticism

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Celina Jaitly (Photo courtesy of Celina Jaitly)

NEW DELHI — The Indian Supreme Court’s ruling against marriage equality on Oct. 17 sparked disappointment and shock among the LGBTQ+ community and its allies in the country and around the world.

Celina Jaitly, an Indian actress and former Miss India who champions LGBTQ+ rights as a U.N. Equality Champion, in an interview with the Washington Blade said the decision was overwhelming and disappointing. She nevertheless said she was hopeful the Supreme Court could challenge opposition or at least mandate lawmakers update India’s Special Marriage Act.

“Tremendous work went into these petitions, and many hopes and dreams of the queer community were attached to them,” said Jaitly. “Every human being dreams of finding love, and starting a family, it is a basic need for a human being to feel loved and needed.”

Jaitly noted more than 10 percent of India’s population identifies as LGBTQ+.

“They are also taxpayers and important pillars of society,” she said. “By not recognizing such unions, they are depriving same-sex couples of their right to equality enshrined in the constitution and rights enjoyed by married heterosexual couples, from adoption and medical insurance to pensions and inheritance.”

Jaitly said the ruling seemed to try to please both parties based on technicalities of legal jargon with no clear mandate, directive or timeline for Parliament to act. She further said there is no pressure on Parliament to enact any legislation without these mandates, and this makes the process tedious and not a priority. 

“In a massive multi-cultural subcontinent like ours, the court needs to push society to acknowledge same-sex marriage,” said Jaitly. 

She noted the “one thing that I have consistently and continuously said as an LGBT rights activist (over) the last two decades is the term ‘LGBT rights’ is convenient but can be misleading.”  

“There is no subset of rights or new category of rights called ‘LGBT rights,'” said Jaitly. “LGBT people are entitled to the same rights as everyone else — among them the right to life, the right to be free from discrimination, rights to privacy and freedom of expression, association and assembly and of course marriage/civil union and the right to the institution of family.” 

“The reality is that these rights, which are universally recognized and agreed upon, are routinely being denied to people just because they happen to be — or are assumed to be — gay, lesbian, bisexual, Transgender or intersex,” she added. “That is something we have to acknowledge and address in a concerted way. Not giving a human being the very basic requirement of marriage and the right to the institution of family merely because of their orientation is indeed against the principle of the core values of a democracy.” 

Souvik Saha, an activist and prominent member of Jamshedpur Queer Circle, told the Blade the organization remains committed to advocating for LGBTQ+ rights and equality. 

Jamshedpur Queer Circle remains deeply disappointed over the Supreme Court’s decision. Saha said the justices’ decision to place the onus on Parliament to amend laws to extend marriage equality to same-sex couples is a missed opportunity to uphold fundamental human rights and promote social inclusion.

“This decision fails to recognize the urgency of the matter, given that LGBTQ individuals continue to face discrimination and prejudice in various aspects of their lives, including access to legal recognition of their relationships,” said Saha. “Denying same-sex couples the right to marry not only perpetuates inequality but also has real-world consequences.”

Saha further noted there are “real-life case studies from around the world have consistently shown the positive impact of legalizing same-sex marriage.”

“It leads to improved mental health outcomes for LGBTQ individuals, as they no longer have to navigate a world that marginalizes their relationships. It also strengthens the social fabric by promoting love, commitment, and family stability,” he said. “Moreover, countries that have embraced marriage equality have seen economic benefits, including increased tourism and a boost to the wedding industry.”

Saha and other activists have called upon Parliament to quickly amend laws to grant LGBTQ+ people the same rights and privileges their heterosexual counterparts enjoy. Saha also urged civil society and allies to continue to raise awareness about the importance of marriage equality in India.

Negha Shahin, a Transgender actress who is the first Trans woman to win a debut actor award at the 52nd Kerala State Film Awards that took place in May, noted to the Blade that India is sending rockets to the moon, but not addressing injustices the country’s LGBTQ+ community continues to face and has failed to meet people’s basic needs. Shahin said marriage is a basic right for everyone.

“If I am a queer or a Trans person, the society and the law, the medical or the education everything, it feels like injustice to us,” said Shahin. “We should wait, and let’s fight for this another time, because we do not know about other things. What if the Supreme Court refuses our human rights in India? Many people from the queer community do not know what to do.”

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.

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India Supreme Court rules against marriage equality

Oral arguments in case took place earlier this year

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The Indian Supreme Court (Photo by TK Kurikawa via Bigstock)

NEW DELHI — The Indian Supreme Court of India on Tuesday issued its long-awaited marriage equality ruling.

A five-judge constitutional bench led by Chief Justice Dhananjaya Yeshwant Chandrachud in a 3-2 verdict against recognizing the constitutional validity of same-sex marriages in India. The country’s top court said Parliament must decide whether to extend marriage rights to same-sex couples.

The Supreme Court recognized the court cannot make laws, but can only interpret them. 

Chandrachud at the beginning of the ruling said the doctrine of separation of powers means that each of the three branches of the state performs a distinct function and therefore no other branch can function any other’s function. Chandrachud mentioned Section 4 of the Special Marriage Act is unconstitutional because it is not sufficiently inclusive. The Supreme Court said either the Special Marriage Act needs to be struck down or read down. 

The Supreme Court recognized that if the Special Marriage Act is struck down, it will take the country to the pre-independence era.

“If the court takes the second approach and reads words into the Special Marriage Act, it will be taking up the role of the legislature,” said Chandrachud. “The court is not equipped to undertake such an exercise of reading meaning into the statute.”

The Special Marriage Act of 1954 is a law with provisions for civil unions for Indians and Indian nationals who live abroad, regardless of religion or faith followed by either party. The Special Marriage Act allows people of two different religions to marry.

Section 4 has some provisions: Neither of the parties should have a living spouse, both parties should be capable of giving consent and should be mentally competent at the time of marriage and the parties shall not be within the prohibited degree of relations under their law. The male party must be at least 21-years-old and the female party must be at least 18-years-old.

Chandrachud noted the court must be careful not to enter into the legislative domain. Chandrachud said Parliament must decide whether a change to the Special Marriage Act is needed.

“The right to enter into a union includes the right to choose one’s partner and the right to recognition of that union,” said Chandrachud. “A failure to recognize such associations will result in discrimination against queer couples.”

Chandrachud said that for the full enjoyment of such relationships, such unions need recognition and there cannot be denial of basic goods and services. The state can indirectly infringe upon freedom if it does not recognize the same. 

Chandrachud also noted a person’s gender is not the same as their sexuality. He said the law recognizes a transgender person’s marriage if their partner is heterosexual. Chandrachud said a union between a trans man and a trans woman, or vice versa, can be registered under the Special Marriage Act because a trans person can be in a heterosexual relationship.

The Supreme Court recognized queer persons cannot be discriminated against. The court said that the material benefits and services flowing to heterosexual couples and denied to queer couples violate their fundamental rights. 

On adoption issues, Chandrachud said the Central Adoption Resource Authority has exceeded its authority in barring unmarried couples.

CARA oversees the adoption of children in India. It functions under the Women and Child Development and it is authorized to regulate and monitor inter-country and in-country adoptions.

Chandrachud said the difference between married couples and unmarried couples has no reasonable nexus with CARA’s objective to ensure the best interests of the child. The court said it cannot be assumed that unmarried couples are not serious about their relationship.

The Supreme Court refused to strike down the Foreign Marriage Act of 1969, which deals with the recognition of marriage of Indian citizens outside the country. 

Chandrachud and Justice Sanjay Kishan Kaul said queer couples have a fundamental right to seek legal recognition of their union. The other three judges, Justices Shripathi Ravindra Bhat, Hima Kohli and Pamidighantam Sri Narasimha, held queer couples cannot claim a right to recognition of their union in the absence of a statutory enactment.

While giving direction to the central; state and Union Territory governments, Chandrachud said that queer community should not be discriminated against. He also noted the government should ensure there is no discrimination in access to goods and services, sensitize the public about queer rights, create a hotline for the queer community, create safe houses for queer couples and ensure intersex children are not forced to undergo operations.

Chandrachud also directed police to not harass queer people by summoning them to police station solely to enquire about their sexual identity, not forcing queer persons to return to their birth family. Chandrachud said authorities should conduct a preliminary inquiry before registering a First Information Report, or FIR, against a queer couple over their relationship.

“Truly disappointed by today’s verdict. We are exactly where we started,” said Harish Iyer, a prominent LGBTQ+ activist in India and one of the plaintiffs in the marriage equality case. “It’s just one topsy turvy ride with no significance.”

Anjali Gopalan, another plaintiff, told the Asian News Agency she has been fighting for a long time and will keep doing so. 

“Regarding adoption also nothing was done, what the chief justice of India said was very good regarding adoption but it’s disappointing that other justices did not agree,” said Anjali Gopalan. “This is democracy, but we are denying basic rights to our own citizens.”

Karuna Nundy, one of the lawyers in the marriage equality case, told the Asian News Agency there were some opportunities today that she believes have been pushed off to the legislators, and the central government has made their stand clear with regards to marriage.

“We hope that their committee will ensure that civil unions are recognized, and concomitants of marriage are then brought into law, at least with regards to civil unions,” said Nundy. “I will also say that Congress and other governments in power in the states have many opportunities to bring into law the recognition of a partner’s rights to make medical decisions because they can legislate on health, they can look at employment nondiscrimination, there is a lot that can be done. If we heard anything that was unanimous it was that queer citizens have rights. Rights of queer citizens must be protected and state governments can protect them”

The Supreme Court Bar Association President Adish Aggarwala reacted to the verdict and welcomed the marriage equality ruling. 

“I am happy that the Supreme Court of India has accepted the version of the government of India in which it was argued that the court has no power to give this right of same-sex marriage. It is the only right of the Indian parliament,” Aggarwala told the Asian News Agency. “Today it has been accepted by the honorable Supreme Court.” 

“We are happy that the Supreme Court has held that this power cannot be given to the same sex for having a marriage because India is an ancient country,” added Aggarwala. “India has its own values in society. so, by not providing this right, we hail the judgment of the Supreme Court on this aspect.”

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. 

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India penal code reform bills do not include LGBTQ+, intersex rights

Supreme Court earlier this year heard marriage equality cases

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Indian flag (Photo by Rahul Sapra via Bigstock)

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. 

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India court seeks advice to make police more responsive to LGBTQ+ people

Country awaiting historic marriage equality ruling

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Bombay High Court (Photo by saiko3p/Bigstock)

MUMBAI — India in its post-independence constitution promised “equality” to every citizen. The country’s Supreme Court in 2018 decriminalized consensual same-sex sexual relations, but it still has a long way to go. 

The Bombay High Court, the highest court in Maharastra state, on Aug. 11 called for suggestions on how to make police officers more sensitive to the LGBTQ+ and intersex community. A division bench at the Bombay High Court was hearing a petition that a same-sex couple who requested police protection from their family filed.

The court asked for responses from the Mumbai police and prison authorities on how an amendment could be made to the Maharashtra Police Manual to sensitize cops in dealing with LGBTQ+ people.

“If two individuals want to live together, the police cannot interfere with them. Constitutional morality has to prevail over collective morality,” said Vijay Hiremath, a lawyer who was appearing for the petitioners.

Even though the Supreme Court ruled there should not be any discrimination against LGBTQ+ and intersex people in 2018, the community still faces social discrimination and harassment around the country. Four LGBTQ+ people in 2022 filed a police complaint against the police in Tripura state after they faced harassment and were detained for the entire night.

R Nazriya, a Transgender police officer, in May claimed she faced harassment at work, even though an inquiry against her alleged harasser had begun. Sanjit Mondal, a gay man, in July 2020 claimed two civic police volunteers on motorbikes harassed him while he was returning home from visiting a friend in Kolkata, the capital of West Bengal state.

The Madras High Court, the highest court in the Tamil Nadu state, last year directed the state police to refrain from harassing LGBTQ+ and intersex activists, NGOs and community members. The court ordered a specific clause need to be added to the Police Conduct Rules, which punish officers who harass the members of the LGBTQ+ and intersex community, NGO employees and activists.

Following the Madras High Court ruling, the Tamil Nadu government introduced an amendment to the Tamil Nadu Subordinate Police Officers’ Conduct Rules and made harassment of LGBTQ+ and intersex individuals by the state police a punishable offense.

Hiremath told the Bombay High Court on Aug. 11 that Tamil Nadu prisons were conducting sensitization programs after the Madras High Court issued a directive.

The Bombay High Court’s division bench noted the plaintiffs’ documents were not only about police sensitization, but also included prison.

“[The] jail manual should be changed, keeping the LGBTQIA community in mind,” said Jaya, the general manager for Sahodaran, an NGO focusing on spreading awareness on sexual healthcare, mental well-being and helping people come out easily. “We need to sensitize police about LGBTQ community.”

While talking to the Washington Blade, Dinesh Chopade, associate advocacy director at Humsafar Trust, a Mumbai-based NGO that works to promote LGBTQ+ and intersex rights, reacted to the Bombay High Court’s ruling and said it’s a welcoming step, but the 2018 decriminalization judgment also mentioned that government authorities should be more responsive to LGBTQ and intersex issues.

“One of the recommendations of the Supreme Court was to sensitize government authorities on the LGBTQ community. This is the direction, the Supreme Court had given to the center and the state government, but unfortunately, none of the states have taken the initiative,” said Dinesh. “We have taken the responsibility as a community-based organization, and we conduct sensitization training in police training academies. We have conducted training in Delhi, Nashik and Mumbai.”

Chopade further said his organization is not waiting for government or any court orders to sensitize police across the country on LGBTQ+ and intersex issues. Chopade also said the Bombay High Court order would certainly create an impact and put pressure on government authorities to take this on a priority basis.

The Bombay High Court has directed the Inspector General (of Prisons) to be made a defendant in the petition.

Anjali Gopalan, a representative of Nirangal, an NGO based in Tamil Nadu that focuses on changing the social status and discrimination against people from all sexual minorities, genders, and sex workers in the state, told the Blade it is a good move to remove any discrimination that exists against the LGBTQ+ and intersex community.

“People from the community don’t have the same rights as all other citizens of the country,” said Gopalan. “Government authorities, health care workers, teachers including police should be sensitized. Sensitization is critical.”

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

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India considers reforms to country’s Uniform Civil Code

Supreme Court earlier this year heard marriage equality case

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Indian flag (Photo by Rahul Sapra via Bigstock)

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

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