Marriage equality: Vows govt must take

Sourav Mandal

The recent US Supreme Court judgement upholding the right to marriage for Lesbian, Gay, Bisexual and Transgender (LGBT) persons as a fundamental right is a landmark development with wider social and political implications.  In India, the situation remains different. Diverse forms of sexuality, be it heterosexual, bisexual, homosexual or transgender, find enough space in India’s rich and inclusive cultural heritage. This is portrayed in different forms of art, literature and temple depictions (Ruth Vanita, 2005). Values of equality, justice, inclusiveness and liberty are embedded in the Constitution. The institutions of the state, the judiciary, executive and the legislature are bound to uphold these larger constitutional values. A Member of Parliament or a minister may be a periodically elected representative of the electorate and have to adhere to the party ideology. However, all constitutional functionaries swear to uphold constitutional values during their tenure and they should endeavour to do so.

The LGBT community, irrespective of whether it is miniscule or a thriving cross-section, has never received any legislative or political support in the struggle for equal rights and justice. The judiciary has been accessible and helped to establish equal rights' jurisprudence at various levels. In 2004, the Supreme Court of India directed the Delhi High Court to admit the petition filed by the Naz Foundation that led to the historic judgment of reading down Section 377 of the Indian Penal Code, 1860. The Section 377 penalises all forms of sexual intercourse, other than the penile-vaginal one, thereby restricting the legal domain of freedom of sexual choices only to male-female.

However, in 2013 the Supreme Court reversed the High Court judgment and upheld the constitutionality of Section 377. It left the matter to the Parliament to either repeal or continue with. The same Supreme Court judgment is currently facing a relook by the court in a curative petition. In 2014, the Supreme court in the case of Nalsa vs Union of India delivered a landmark verdict in favour of transgenders, providing them with equal rights and opportunities under the law. The court directed the governments at the Centre and states to ensure the recognition of transgenders as a separate gender; create equal opportunities for them in educational institutions and government jobs by providing reservations. 

In the case of Naz Foundation (2009) at the Delhi High Court and in its appeal at the Supreme Court, the Government of India's stand has been absolutely neutral. That means, the government chose to never actively oppose the petition for reading down the oppressive Section 377. In 2013, the division bench of the Supreme Court upheld the constitutionality of Section 377. The leaders of the former UPA regime criticised the then judicial stand. Their efforts (along with that of other respondents, like the Naz Foundation) finally made the Supreme Court re-evaluate its earlier judgment which is still pending. The BJP government is yet to articulate its position on the matter.

The Narendra Modi-led BJP attained power in 2014, riding on the poll promise of Sabka Saath, Sabka Vikas. The BJP's poll manifesto clearly speaks for making a stronger India on the model of inclusive development and participatory democracy. It is necessary for the BJP to come out openly in support of India's oppressed and marginalised LGBT population. If it does not then it should be construed as double standards of a political party. 

It is too early to judge the Modi government on the LGBT rights' issues. After all, in the matter of the Transgender Rights Bill, 2015, which the Rajya Sabha recently passed with the support of the ruling party is noteworthy of living up to its people-oriented poll promises to distinguish itself from other political parties.

Two questions arise about the BJP's future strategy. In case a Private Member's bill (like the Transgender Rights Bill) is introduced in Parliament to repeal Section 377, IPC, would the BJP support the same or oppose it? 

Would the BJP ask its own Minister for Law and Justice to introduce a Bill to repeal Section 377, IPC, and then support the same till it becomes the law? Will this government show the sense of strength and urgency as it did during the debates over the Land Acquisition Bill in  Parliament, despite opposition from all quarterss? During the remaining tenure, the Narendra Modi government may be  questioned by many to define “inclusive development” and “participatory democracy”. In the United States, the Presidency under the Obama administration celebrated the Supreme Court verdict on marriage-equality by lighting the White House in rainbow colours, depicting LGBT pride. 

The writer, a research scholar at the National Law School of India University, Bangalore, is teaching at School of Law, Christ University, Bangalore