Indian government creates committee to study rights for same-sex couples
The Indian Supreme Court seven months ago declined to grant legal status to same-sex marriages.
At the time of the verdict, however, the Supreme Court instructed the federal government to establish a committee to address the myriad issues faced by the LGBTQ community in India. These include matters such as pensions, joint property ownership, healthcare access, and child custody.
In compliance with the Supreme Court’s directive, the Indian government on April 16 established a committee with Cabinet Secretary Rajiv Gauba appointed as its chair. The committee, consisting of six members, will include secretaries from the Home Affairs, Women and Child Development, Health and Family Welfare, Social Justice and Empowerment, and the Law Ministries.
“The Hon’ble Supreme Court vide its judgment dated 17.10.2023, in Writ Petition No. 1011/2022 Supriyo@Supriya vs. Union of India, has directed the central government to constitute a committee to be chaired by the Cabinet secretary to examine the various issues relating to queer community,” said the gazette notification.
A 5-judge constitutional bench led by Chief Justice Dhananjaya Yeshwant Chandrachud refused to recognize the right to marry as a fundamental right for same-sex couples. The country’s top court stated, while delivering the verdict last year, that parliament must decide whether to extend marriage rights to same-sex couples.
The Supreme Court acknowledged it cannot make laws but can only interpret them. It also recognized queer people cannot be discriminated against. The court had said that the material benefits and services given to heterosexual couples and denied to queer couples violate their fundamental rights.
Chandrachud and Justice Sanjay Kishan Kaul in their dissenting opinion advocated for civil unions instead of marriage, arguing this approach would grant legal rights to same-sex couples without extending full marriage rights. They emphasized that while marriage may not inherently confer rights, it offers certain “intangible benefits in the form of expressive advantages” and provides a “bouquet of rights” for couples to exercise.
“For the right to have real meaning, the State must recognize a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognize such entitlements would result in systemic discrimination against queer couples,” said Chandrachud.
Solicitor General Tushar Mehta, the country’s second-highest law officer, at the time had stated a committee chaired by the Cabinet secretary would be formed to delineate the rights that should be available to LGBTQ couples in a union.
The Supreme Court had outlined several entitlements for the LGBTQ community that include the right for queer partners to be treated as part of the same family for ration card purposes, the ability to set up a joint bank account, jail visitation rights, recognition as “next of kin” by medical practitioners, and the right to access the body of a deceased partner to arrange the last rites.
“The committee shall set out the scope of the benefits which accrue to such couples,” stated the Supreme Court in its 2023 ruling.
In last year’s judgment, the Supreme Court said “legal consequences such as succession rights, maintenance, financial benefits such as under the Income Tax Act 1961, rights flowing from employment such as gratuity and family pension and insurance.”
The Income Tax Act 1961, provides some benefits to married couple in India, such as a maximum deduction of ₹199,654.44 ($2,400) that can be claimed in a financial year. Married couples can opt for a joint home loan with tax benefits on interest paid and principal repaid, and also get a higher loan amount. These financial benefits, however, are not available for LGBTQ couples in the country. Similarly, as per the rule of family pension in India, if a deceased government servant or pensioner is survived by a spouse, they will be the first to receive a family pension. Children and other family members become eligible for it only after the spouse of the decedent or pensioner become ineligible for a family pension or dies.
Activists say the establishment of a committee chaired by the Cabinet secretary to address the issues faced by LGBTQ couples in a union is a promising step forward.
“The Supreme Court’s verdict on October 17 last year marked a significant milestone in recognizing the rights of LGBTQ individuals, and this committee could play a crucial role in translating legal recognition into practical and effective policy changes,” said Souvik Saha, an LGBTQ activist and founder of People for Change. “The formation of this committee is particularly important in a state like Jharkhand, where LGBTQ individuals face unique challenges. According to the National Human Rights Commission (NHRC), LGBTQ people in India, especially in rural areas, continue to face significant stigma and discrimination. In Jharkhand, these challenges are compounded by socio-economic factors and a lack of awareness and acceptance among the general population.”
He also said this committee’s effectiveness will depend on its ability to engage with LGBTQ communities, understand their needs, and implement policies that are both inclusive and practical.
“As someone working on the ground, I would emphasize the importance of including voices from all parts of the LGBTQ spectrum, particularly those from marginalized communities,” Saha said.
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.