Arguably the most significant hearing on LGBTQI rights since the Supreme Court decriminalised sex against the “order of nature” in 2018, here’s what the case being heard by chief justice DY Chandrachud and justices SK Kaul, Ravindra Bhat, Hima Kohli, and PS Narasimha has thrown up so far.
Under discussion are adoption, majoritarian opinion, fundamental rights, marriage and the definition of family itself. It’s clear that the ramifications of this case will have an impact on all citizens.
A question of rights
Opening the arguments for the petitioners, senior advocate Mukul Rohatgi said the logical step after decriminalising homosexual relations by reading down section 377, is the granting of equal marriage rights guaranteed by the Constitution.
Marriage, which has the legal sanction of the state, he said, will remove the stigma the LGBTQI community continues to face.
Majoritarian opinion cannot be an excuse to deny the rights of a sexual minority. “My rights are equal to those of others. They have a right to marriage, the right of respectability. A concomitant of rights flow from that respectability…I cannot be discriminated against because we may be 10,000 and the others are 10 crore,” Rohatgi said.
Rohtagi has asked the courts to go beyond making amendments to the Special Marriage Act (SMA) to make a constitutional declaration of the right to marry on the lines of rights enjoyed by heterogeneous groups.
Marital relationships, regardless of sexual orientation, is the “heart of the case”, added senior advocate Abhishek Manu Singhvi. In addition to social validation, marriage, he said, provides several benefits including a sense of security, greater financial support and stability, and a gateway to tax, inheritance and adoption.
A Constitution bench headed by Chief Justice of India (CJI) Chandrachud amid a hearing of a batch of petitions demanding legal that recognises marriage equality for all (Source: PTI)
Whose job is it to defend citizen rights?
The government through solicitor general Tushar Mehta has insisted that it is not the job of the courts to create a new socio-legal institution “which is the domain of the competent legislature”.
But Rohatgi pointed out, it is the court’s duty to act when fundamental rights are being restricted – as it has done in the recent past with Shayara Bano (triple talaq) and Puttuswamy (right to privacy). “I cannot be told that I should wait for Parliament to grant me these rights when I’m dead and gone,” he said.
Given Justice Kaul’s advice– “For the time being, confine it only to a limited issue (of the SMA). Don’t step into personal law,” – there has been a lot of discussion about the 1954 act.
By substituting the gender neutral word, “spouse” in place of “husband and wife”, the SMA can accommodate same-sex marriage, said Rohatgi.
Singhvi suggested that just as the SMA is an alternative to personal law for interfaith couples or those who want a non-religious marriage, it could be extended to include same-sex couples.
In the context of Singhvi’s remarks, Chief Justice Chandrachud weighed in. The decriminalisation of homosexuality, he said, meant recognising “the fact that people who are of the same sex could be in a stable relationship and requires us to redefine the evolving notion of marriage….Is the existence of two spouses who belong to a binary gender a necessary requirement for marriage?”
There are problems, of course. For instance, the SMA, Singhvi argued, requires a 30-day notice period by couples applying to marry. This provision does not exist in any of the personal laws and is, moreover, an invasion of privacy, he said. Justice Bhat called the provision “patriarchal”. And Justice Chandrachud said the notice period makes couples “open for invasion by society”.
(In August last year, another two-judge Supreme Court bench refused to hear a public interest litigation challenging the requirement of a notice period by the SMA)
The requirement for a notice period is “designed for parental bodies and other busy bodies to create roadblocks,” senior advocate Raju Ramachandran said.
The bench agreed and said the notice period has a “disproportionate impact on those who are the most vulnerable sections of our society.”
Urban and elitist? Far from it
The government calls the demand for marriage equality “urban and elitist”. This too was addressed in court. How can something that is innate to a person be urban and elitist, wondered Rohatgi.
Senior advocate KV Vishwanathan spoke about his client, a transgender woman who was disowned by her family, forced to beg on the streets and is now a director with KPMG.
Another petitioner, trans activist Padmashali Akkai was thrown out of her home at the age of 15 and had to drop out of school. “To say this is an elitist concern is wrong,” he said.
Kavita Arora and Ankita Khanna (Source: Kavita Arora)
Ramachandran told the court his clients included a Dalit woman from a town in Punjab and her partner who is an OBC (other backward caste) from Bahadurgarh, Haryana.
Among the 50+ petitioners, there are five who cannot even be named for fear of their lives.
The bench also disputed the government’s claim saying there is “no data” to back this claim.
Adoption and children
Without specifically mentioning it, the court rubbished the bizarre claim by the National Commission for Protection of Child Rights that “allowing adoption to same-sex couples is akin to endangering the children”.
Chief Justice Chandrachud pointed out: “Today, even if a couple is in a gay relationship or a lesbian relationship, one of them can still adopt.”
He disagreed that same-sex couples cannot take care of their children. “What happens when there is a heterosexual couple and when the child sees domestic violence? Will that child grow up in a normal atmosphere?” he asked.
The court is keen to wrap up the hearings as soon as possible since Justice Bhat retires in October. But there are still many petitioners waiting to be heard. And although they are all, more or less, asking for marriage equality, there is no one size fits all.
Among them is Rituparna Borah, a queer feminist activist and others, including the five anonymous petitioners mentioned above. They are part of an informal network of lesbian, bisexual and intersex women and trans persons and have been creating spaces for these communities to connect and support each other.
Rituparna Borah (Source: YouTube ScreenGrab)
Represented by senior advocate Vrinda Grover, their petition is not so much about marriage rights as it is about the right to recognise a “chosen” family beyond the legally recognised norms of birth, adopted and marital family.
The petition details the horrific abuse that lesbian, bisexual, intersex and transgender people can face from their own families, including so-called conversion therapy, electric shock treatments, “corrective” rape, and forced marriage.
Complicit in this abuse are institutions like the police as well as mental health practitioners and institutions.
Rejected and abused by their own families, the petitioners want the court to recognise “chosen” families which can, for instance, take crucial medical decisions on their behalf.
It is imperative that the court hears them adequately.
(On April 1, a small group of queer and trans persons held a closed door meeting where they spoke about violence from families. The report, Apnon Ki Bahut Lagti Hai (our own hurt us the most) can be downloaded here.)
[You may also want to read Beyond Marriage Equality by Shreyashi Ray of the Vidhi Centre for Legal Policy here.]
The next hearing is on Monday, April 24. When the court is in session, you can watch the proceedings live here.
I have relied on LiveLaw, Bar&Bench and The Leaflet for exact quotes.
The decriminalisation of homosexuality in 2018 improved mental health outcomes for LGBTQI people, believe 87% of people in a recent survey. Amongst those who identify as lesbian, gay, bisexual, trans person, queer or intersex, 91% said the landmark judgment had improved mental health.
Source: Survey of 5,825 individuals, approximately a third of whom identified as LGBTQI, found that legalising same-sex unions has a positive result on mental health outcomes.
The bronze statue of Stella Young by sculptor Danny Fraser (Source: The Age)
Because there are so few statues of women around the world, this one deserves a look anyway. Australian disability activist, journalist, speaker and comedian Stella Young died young at 32 in 2014 but fought to normalise people with disability. People, she argued, are disabled not so much by their physical condition but by inaccessible environments and hostile social attitudes.
Appropriately, reports The Age, her statue has been placed right in front of an accessible playground.
Listen to her 2014 Ted X Sydney talk where Young says, “I am not your inspiration”. And, yet, she was.
The long(ish) read
The drought-prone area of Marathwada and Vidarbha in Maharashtra sees a high rate of male farmers dying by suicide due to their inability to pay off loans.
Now, their widows, trained by Makaam (Mahila Kisan Adhikar Manch), are adopting organic farming methods to earn a profit, turn around their lives, and win a new-found dignity in their communities.
Read Varsha Torgalkar’s story for IndiaSpend here.
News you may have missed
Government tells the country’s highest court: Won’t show you the Bilkis Bano file
Asked by a two-judge Supreme Court bench to show the file that led to the release of 11 men convicted of gang-raping Bilkis Bano and murdering 14 members of her family in the 2002 Gujarat riots, the centre as well as state government has dug its heels in claiming it was “considering” filing a review petition against the court’s order to produce it.
Bilkis Bano (Source: HT)
At the time of writing, no such petition has been filed.
In August last year, 11 men who had been sentenced to life imprisonment walked out of jail under the state’s remission policy. As the garlanded men were feted by rightwing organisations, Bilkis Bano and others went to court demanding to know how they had got a free get-out-of-jail pass.
Based on those petitions, justices KM Joseph and BV Nagarathna asked the government to provide the relevant files that would explain how they had been granted remission.
But on Tuesday, additional solicitor general SV Raju, appearing for both the central and the state government, told the court that the government was “considering” filing a review petition against the court’s order. The hearing began with Raju actually seeking an adjournment claiming there had been a delay in getting the records translated from Gujarati.
The angry judges minced no words in saying the government was in contempt. “No state can escape the contours of the law,” Justice Joseph warned.
But, said Vrinda Grover, lawyer for the petitioners, “Delay has become an adjunct of impunity.”
The next date for hearing is May 2. Justice Joseph retires in June.
Sex, lies and fratricide
Some reports have hinted at predatory sexual abuse over a long period of time that allegedly led Desai Mohan to snap on April 12, shooting four army men at a Bathinda military base. But with Punjab police and the Indian Army shying away from the details – and asking the press not to probe into beyond what it has been told – we might never know the whole truth.
Who let these monster rapists out?
Monster rapists out on bail allegedly set fire on Tuesday to the home of a 14-year-old Dalit survivor after she refused to withdraw her police complaint. The gang-rape survivor had given birth to a child some six months ago, and this infant along with her three-month-old baby sister were critically injured in the fire in Maurawan in Uttar Pradesh’s Unnao district.
Just five days before the fire, the rape survivor’s father was attacked by the rape accused with an axe. The girl was raped on February 13, according to police officials, and the accused released on bail in March. She and her family have accused local police of shielding the accused. The police claim the fire was a result of a family feud. Indeed.
And the good news…
Baljeet Kaur (Source: Twitter)
Everything that could go wrong on Annapurna on the night of April 17 did: Bad weather, camps running out of food, low oxygen supplies. Not all climbers who had made the ascent made it back down. Noel Hanna, a 10-time Everest summiter died in his tent at camp 4.
The first to be rescued was Baljeet Kaur. She had made it to the top without oxygen and was found alive at 7,300m, airlifted to base camp and from there to hospital.
Another miracle to follow was the discovery of Anurag Maloo, alive after three days 50 ft inside a crevasse below camp 3, one of the most dangerous spots on the mountain.
On Friday, Baljeet Kaur tweeted from her hospital bed to “thank you all from the Bottom of my Heart”.
ExplorersWeb has more on the dramatic rescue of the climbers here.
In the aftermath of the brutal gang-rape of a 23-year-old medical student in New Delhi in 2012, someone spread a story that the most violent of the rapists was aged 17, then considered a juvenile.
The rumour spread like wildfire and in the face of public anger, the government reduced the age of delinquency to 16.
Ever since, writes Enakshi Ganguly in this new book on children in conflict with the law, focus of juvenile justice has been retributive rather than reformative.
This book is a valuable addition (and reminder) of a much-needed conversation that includes two first-person accounts by psychologist Kalpana Purushothaman and artist Puneeta Roy.
Juvenile, Not Delinquent: Children in conflict with the law by Enakshi Ganguly with Kalpana Purushothaman and Puneeta Roy, Speaking Tiger, Rs 399
AROUND THE WORLD
Jelena Dokic (Source: Instagram)
On Instagram, 2000 Wimbledon semi-finalist and one-time world #4, Jelena Dokic, now 39, posted two photographs of herself side-by-side– one as she is at size 16 and the other as a teen player at size 4. In a detailed post she wrote about why she preferred being a larger size. Rohit Brijnath of The Straits Times (sadly, behind a paywall) calls it the “most substantial thing in sport this week”.
Talking of domestic violence at the hands of her father and of surviving anxiety, depression, PTSD, and trauma as well as an attempted death by suicide, she writes, “Beauty isn’t about being a certain size, beauty is having a beautiful heart and soul.”
In the two days since she put the post, it has been viewed 58,300 times with many speaking up in support of her.
In Washington, transgender athletes whose biological sex assigned at birth was male would be barred from competing in girls and women’s sports teams at schools and colleges that receive government funding. APNews has the details.
In Nigeria, two more women have come forward to testify against the army’s mass, forced abortion programme during the country’s war against Boko Haram insurgents in the northeast, first reported by Reuters. The women, more than 30 in all, will be testifying before the country’s human rights commission that began hearings after the Reuters revelations in December that said at least 10,000 pregnancies had been terminated among women and girls impregnated by Islamist insurgents since 2013. Read the investigation here.