Committee to study rights for same-sex couples created by Indian government
May 30, 2024Seven months ago, the Indian Supreme Court declined to recognise same-sex marriages legally. Following this verdict, the Supreme Court instructed the federal government to form a committee to address the various issues faced by the LGBTQ+ community in India, such as pensions, joint property ownership, healthcare access, and child custody.
In response to the Supreme Court’s directive, the Indian government established a committee on April 16, with Cabinet Secretary Rajiv Gauba appointed as its chair. According to ‘Washington Blade’, the six-member committee includes secretaries from the Home Affairs, Women and Child Development, Health and Family Welfare, Social Justice and Empowerment, and Law Ministries.
“The Hon’ble Supreme Court, in 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 chaired by the Cabinet secretary to examine the various issues relating to the queer community,” mentioned the gazette notification.
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A 5-judge constitutional bench led by Chief Justice Dhananjaya Yeshwant Chandrachud refused to recognise the right to marry as fundamental for same-sex couples. In delivering the verdict last year, the country’s top court stated that parliament must decide on extending marriage rights to same-sex couples.
The Supreme Court admitted it cannot make laws but only interpret them, acknowledging that queer people should not be discriminated against. The court noted that the material benefits and services provided to heterosexual couples but denied to queer couples infringe upon their fundamental rights.
Chief Justice Chandrachud and Justice Sanjay Kishan Kaul advocated for civil unions instead of marriage in their dissenting opinion, arguing that this would grant legal rights to same-sex couples without full marriage rights. They emphasised 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,” remarked Chandrachud.
Solicitor General Tushar Mehta, the country’s second-highest law officer, had indicated that a committee chaired by the Cabinet secretary would be formed to outline the rights available to LGBTQ+ couples in a union.
The Supreme Court detailed several entitlements for the LGBTQ+ community, such as the right for queer partners to be recognised as part of the same family for ration card purposes, the ability to open 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 for arranging last rites.
“The committee shall set out the scope of the benefits which accrue to such couples,” the Supreme Court stated in its 2023 ruling.
In last year’s judgment, the Supreme Court mentioned “legal consequences such as succession rights, maintenance, financial benefits under the Income Tax Act 1961, and rights flowing from employment such as gratuity, family pension, and insurance.”
The Income Tax Act 1961 provides some benefits to married couples in India, such as a maximum deduction of ₹199,654.44 (approximately £1,880) 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 qualify for a higher loan amount. However, these financial benefits are not available for LGBTQ+ couples in the country. Similarly, under the rules for family pension in India, if a deceased government servant or pensioner is survived by a spouse, the spouse is the first to receive the family pension, with children and other family members becoming eligible only after the spouse becomes ineligible or dies.
Activists view the formation of a committee chaired by the Cabinet secretary to address the issues faced by LGBTQ+ couples in a union as a positive 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 noted that the committee’s effectiveness will rely on its ability to engage with LGBTQ+ communities, understand their needs, and implement inclusive and practical policies.
“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.
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