India offers new ‘benefits’ to same-sex couples as marriage equality hearing nears end

Senior advocate Menaka Guruswamy says young queer couples want to get married and not keep being treated as ‘second-class citizens’

Namita Singh
Thursday 04 May 2023 15:15 BST
Meet the couples fighting litigation for legalisation of same-sex marriage in India

India’s government has indicated it is willing to extend some social benefits to same-sex couples, as a top court hears a series of petitions seeking marriage equality.

Narendra Modi’s federal government informed the top court that it was willing to constitute an inter-ministerial panel to examine certain rights to same-sex couples as it maintained its stance against recognising their relationship as “marriage”.

The committee, headed by the cabinet secretary, will look into the “administrative steps” that the government can consider for ensuring social security and other welfare benefits, submitted solicitor general Tushar Mehta.

Earlier last week, the apex court had asked the government to mull the executive guidelines that can be changed to ensure certain benefits, such as opening joint bank accounts and nominating partners in life insurance policies, can also be extended to same-sex couples.

“The government is positive,” said the solicitor general on Wednesday. “What we have decided is that this would need coordination between more than one ministry. So therefore a committee headed by no less than the cabinet secretary will be constituted,” he added.

“The petitioners can give their suggestions to this committee so that whatever is legally permissible can be done.”

The constitution bench, composed of chief justice DY Chandrachud and justices Sanjay Kishan Kaul, S Ravindra Bhat, PS Narasimha and Hima Kohli, appreciated the proposition calling it a “big step”.

The court noted that it does not want to leave same-sex couples “with nothing in their hands” if it eventually decides against their petitions for the legal recognition of their union.

It also directed the petitioners to work with the law officers and focus on the issues that can be looked into by the proposed committee.

The lawyers representing same-sex couples, including senior advocate Menaka Guruswamy and Saurabh Kirpal however, raised concerns saying that there were constitutional issues involved in the matter and changes in the administrative circular will not resolve them.

Gender rights activists and supporters of LGBTQ community walk the Delhi queer pride parade in New Delhi
Gender rights activists and supporters of LGBTQ community walk the Delhi queer pride parade in New Delhi (AFP via Getty Images)

Dr Guruswamy said that she had spoken at different events and found that young queer couples want to get married and not keep being treated as “second-class citizens”.

“I don’t say this as an elite lawyer. I say this having met these young people. Do not let them experience what we have experienced,” she told the court.

The courts cannot be guided by popular or segmental morality but only constitutional morality, responded the bench as it cautioned against the “all or nothing” approach.

“Sometimes, the beginnings are small but they can prove to be very substantial in various aspects,” said the apex court.

“As the solicitor general argued on the last day, the government accepts that same-sex couples have a right to cohabit, and it has been accepted as a social reality. Based on that, there may be some incidents like the right to reside, bank account, insurance etc. From your perspective, this can be very important. This can’t be all or nothing.”

It also clarified that the court will decide on the constitutional issue of marriage equality regardless of the concessions that the government makes.

"Don’t see this as the end of the battle. Your movement for equal recognition will always remain,” weighed in Justice Bhat. “Even if you don’t accept this or partly accept this, it won’t be the end of what you do.

“If you get something out of this, it is a big big positive".

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