30/01/2020
Indian LGBTQ+ Communities Approached the Judiciary for Marriage Equality Law and Abrogation of the Draconian Transgender Act (Post in English)
27th January of this year marks a significant day for the gender and s*xual minority or LGBTQ+ communities in India as their collective movement to procure their fundamental rights continues to confront several difficulties in frequent manner. Three q***r individuals from two distinct geo-political locations of India have taken resort to the Indian Judiciary in context of two individual cases to seek help for their vulnerable situations. This incident again proves how India’s LGBTQ+ community is unable to put faith in their government and the elected members of the Parliament for their secured existence in the country.
Swati Bidhan Baruah, a transgender activist from India’s North-Eastern state of Assam, has filed a petition in the Supreme Court of India to revoke the Transgender Persons Act. In the Southern part of the country, two native residents of Kerala, Nikesh and Sonu, have filed a petition in the Kerala High Court, demanding an explanation on the deliberate exclusion of same-s*x/ gender marriage under India’s Special Marriage Act. Apart from trying to secure the fundamental right to personal autonomy and dignity, another common ground for both the cases is that both of them were accepted for further hearing in their respective Courts.
In the year 2014, a division bench of the Supreme Court of India comprising of two judges, passed the historic NALSA verdict to protect constitutional rights of transgender and other gender-variant individuals living in India. And it is likely that for the first time in the history of India, a third gender identity was legally recognized outside of the gender binary (female-male construct).
In NALSA, Supreme Court unambiguously stated that people of different marginalized gender identities are legitimate citizens of India and have every fundamental right provided by the Constitution of India including one’s right to self-determination of gender identity. Acknowledging the fact that transgender individuals have been victims of violence and discrimination for centuries, the apex court also directed the government to provide reservation in education and public employment for the marginalized transgender community individuals.
However, after the NALSA verdict, under the guise of protecting and safeguarding the rights of transgender individuals, a new bill was introduced on behalf of the Ministry of Social Justice and Empowerment under the Government of India. The bill completely subverted and distorted what the Supreme Court had previously found as necessary actions in NALSA.
Last year, In November, after an extensive debate on various clauses of the Transgender Persons Bill, the Government of India decided to stay ignorant at the demands of the transgender and LGBTQI+ community in large, and finally passed the bill in both houses of the Parliament. And soon after the Presidential assent, on January 10, the MSJE issued a notice that the Transgender Persons Act comes into effect across the nation.
What’s alarming in this act is that the the right to self-determination in gender is casually dismissed and now, every transgender person has to "prove" to the district magistrate by showing the ‘authenticity’ or valid proof of being a transgender person. And if the district officials are not "satisfied", the transgender certificate would not be issued to the transgender applicant. As a result, a transgender person is now forced to undergo gender-affirmative procedures to be able to legally change their names and gender-markers in the official identity documents, which was termed immoral in NALSA.
When it comes to cases of r**e and other forms of s*xual violence against cisgender individuals, imprisonment is given for up to ten years, while the punishment for such violence against a transgender person is only for two years maximum. Furthermore, the new law fails to address issues related to the marriage of transgender people, legal rights in terms of inheritance of property, rights to adopt children, protection against violence and discrimination, reservation in education and public employment, etc.
Keeping all these issues in mind, Ms. Swati Baruah filed a petition in the Supreme Court, stating that the Act is unconstitutional and thus undermines the rights of transgender people to live with dignity and their right to privacy. Being a lawyer by profession, Ms. Baruah recently filed a petition with the Guwahati High Court against the internet ban in the state of Assam during the anti-NRC/CAA protests and convinced the court to lift the ban on Internet services in the state.
In a telephonic interview with The Lens, Ms Baruah said, “I have filed this petition by myself. I did not want to do this through a community consultation or through an NGO. I have found that doing something through an NGO causes it to be unnecessarily delayed. The Transgender Act is against the fundamental right granted by the Constitution, and as an Indian citizen I have the right to go to the Supreme Court against this unconstitutional law. " Among the several other advocates decided to contest on behalf of Swati, is Advocate Anita Shenoy, who also was an advocate for the NALSA case in 2014.
On the other hand, after the verdict on the Constitutionality of Section 377 of the Indian Penal Code on September 6, 2018, many people started enquiring about legal recognition of q***r relationships. While several q***r rights activists believe that marriage should not be considered as the prime focus of q***r rights movement, especially when many q***r and transgender people are still subjected to violence and discrimination in various places such as educational institutions, healthcare facilities, workplace, etc, there is no denying that right to legal marriage is a fundamental Human Right and individuals from LGBTQ+ community should not be deprived of that right.
In the last few years, q***r couples in India have tied knots in the form of social marriages and their wedding videos and photos have been adored by the internet. One such couple is Nikesh and Sonu. On July 7 in 2018 they officially announced their union through a social marriage in a temple in Kerala and this time they went to the Kerala High Court seeking legal recognition of their marriage or unionship.
In the petition, they stated that in both NALSA and Section 377 verdicts, the Supreme Court has given legal recognition of s*xual orientation as a fundamental right of any individual. However, the legal right to form partnership, i.e., marriage is still restricted to cisgender heteros*xual people. As a result, homos*xual, transgender, and other q***r people are still being deprived of various fundamental rights granted by the Indian Constitution and are discriminated against. In the petition, the couple demanded that under the Special Marriage Act of 1954, all such relationships should also be legally recognized.
The noticeable fact here is that in both of these cases, the Supreme Court and the Kerala High Court have not only accepted these petitions for hearing but also issued notices to the Government asking them to clarify their positions on the matter. In both these cases, the Indian Government is clear from its side that they do not grant the right to self-determination of gender or the legal recognition of marriage of q***r couples.
It is important to note in this context that at the hearing of Article 377 in 2018, the Government of India made it clear that they would not approve the claim of marriage equality. During the hearing, the Government even requested the Supreme Court, that the judges should restrict the hearing to only the periphery of article 377 and its constitutional validity, leaving out other issues of civil rights.
A Government Official, who does not want his name to be disclosed, said that even though the BJP-run government did not clear its position with the government regarding article 377, it was surely going to oppose same s*x marriage equality. Sri Arun Kumar of RSS said, “Same-s*x marriage is unnatural and there is no question of supporting it. Indian society did not accept, and will never accept, such relations.”
Even in the context of the Transgender Act, the government's views seem clear as the same government was not ready to approve or accept NALSA verdict. The current Government has also managed to suppress the agitation and the protest against the Transgender Persons bill since 2016. The BJP MPs who participated in the debate regarding this bill in the Rajya Sabha have made it clear that they are looking at the bill through a religious lens rather than a Human Rights one. As a result, when opposition MPs questioned the Government on the fundamental right to self-determination of one’s gender, their answers were vague.
So, the only thing for now is to keep waiting for two petitions to come up for the next hearing. While Swati’s petition would only come up in the month of March, in the context of marriage equality, Kerala High Court wants answers from both the Kerala State Government and the Government of India within two weeks. The Government has to answer and maybe the answer can only lead to the next movement. But what is clear is that the passing of laws relating to the rights of q***r people is not possible in India's Parliament in the foreseeable future, unlike our neighboring countries like Nepal, Bhutan, and Pakistan.
Photo Description for Visually Impaired Persons: The picture shows the first page of the Writ Petition Filed by Nikesh and Sonu before the Kerala High Court. Next to it is the synopsis of the Section 32 Petition filed by Swati Bidhan Baruah in the Supreme Court. Next to that is a picture of Swati Bidhan Baruah in a black robe. Underneath that is a picture of Nikesh and Sonu, and in the picture they are wearing flower wreaths around their necks. At the bottom of the picture it says "Indian LGBTQ+ Communities Approached the Judiciary for Marriage Equality Law and Abrogation of the Draconian Transgender Act." And on the top the picture has the logo of The Lens.
