New Delhi - On October 17th, the Supreme Court delivered its much-anticipated verdict on the legalization of same-sex unions. Contrary to the hopes of the LGBTQIA+ community, the verdict did not favour their cause. The five-member bench unanimously rejected the legalization of same-sex marriages. What all members of the bench did agree on was that the authority to make decisions regarding marriage lies with the legislature, not the judiciary. Marriage falls under the concurrent list, giving both state and central governments the power to propose bills that reflect the changing times. However, history bears witness to the recurring homophobic and transphobic rhetoric within the parliament, resulting in the dismissal of previous attempts to support the LGBTQIA+ community. Several politicians have attempted to introduce bills in support of the queer community, yet each of these efforts faced rejection.
In 2015, during a period of intense debate on intolerance, Shashi Tharoor, a member of the Indian National Congress, made an attempt to introduce a bill. His proposed bill aimed to decriminalize consensual same-sex relationships among consenting adults. It sought to overturn the Supreme Court's 2013 judgment that had criminalized queer relationships.
The main opposition came from the ruling Bharatiya Janata Party (BJP), with Rishikant Dubey of the BJP arguing that the bill "conflicted with the Supreme Court's stance on the issue" and cited "Indian family values" as being incompatible with homosexual relationships. Quoting personal and conservative opinions in a legislative body is not uncommon in the nation. Tharoor responded by stating that Dubey had misinterpreted the court's decision, as the apex body had sought Parliament's perspective on the issue.
A voice vote was conducted, revealing that 71 members voted against the bill while 24 voted in favour. Tharoor expressed his disappointment on Twitter, saying, "Notice of intent to oppose the introduction of the bill came so late that there was no time to rally support. We will try again in the future. We shall overcome!"
In 2021, Dr. S. Senthil Kumar, a member of the Dravida Munnetra Kazhagam (DMK), proposed a bill aimed at granting 12 rights to LGBTQIA+ individuals. These rights included adoption, guardianship, surrogacy, recognition of LGBTQIA+ individuals as families, marriage, maternity benefits, and the right to serve in the military. The bill also introduced anti-discrimination laws and provisions to protect queer people from sexual harassment, which is a pressing need. The bill's objective was to ensure that "any act, ordinance, rules, regulations, by-laws, order, or other instrument that provides rights to heterosexual couples or implies a gender binary shall also apply to LGBTQIA+ individuals unless stated otherwise."
The politician argued that there were two ways to eliminate stigma: amending existing laws or enacting new inclusive legislation. Dr. Senthil also quoted Madras High Court Justice N. Anand Venkatesh, who stated that "ignorance is no justification for normalizing any form of discrimination."
Supriya Sule of the Nationalist Congress Party introduced a private member's bill in Parliament, aiming to grant marriage rights to LGBTQIA+ couples. The bill proposed an insertion after section 4 of the Special Marriage Act, allowing the solemnization of marriages between any two persons of the same sex under this Act. The bill also recommended the use of the gender-neutral term 'spouse' instead of 'husband' or 'wife' in the Special Marriage Act.
The bill's objective emphasized that, although the determination of one's sexual orientation had been acknowledged, LGBTQIA individuals were still unable to marry and create their own families. LGBTQIA couples lacked access to rights that heterosexual couples enjoyed upon marriage, such as succession, maintenance, and pensions. Therefore, amending the Special Marriage Act, 1954, to legalize same-sex marriage and provide legal recognition to married LGBTQIA couples was of utmost importance.
Supriya Sule posted on social media, stating, "In 2018, the Supreme Court struck down an archaic, draconian legislation of IPC — Section 377. Through this landmark judgment, Navtej Singh Johar v Union of India, homosexuality was effectively decriminalized. While this was a much-needed, progressive leap forward, LGBTQIA+ individuals still face discrimination and social stigma within society. Therefore, it is of utmost importance to amend the Special Marriage Act, 1954, to legalize same-sex marriage and provide legal recognition to married LGBTQIA couples. Doing this will ensure that Article 14 and Article 21 of the Constitution are upheld and ensure that LGBTQIA+ couples are provided with the equal rights they are entitled to."
All of these bills were private member bills introduced by members of parliament, rather than government bills introduced by union ministers. To date, only 14 bills have been passed. Given the lack of serious discussion in Parliament about these bills, the LGBTQIA+ community may be discouraged, as the most significant decisions that have benefited the community, from the NALSA judgment to the decriminalization of same-sex relationships, have come from the judiciary.