Gender Question | A tale of two South Asian countries and same-sex marriage - Hindustan Times
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Gender Question | A tale of two South Asian countries and same-sex marriage (Part II)

ByDhamini Ratnam
Mar 04, 2024 01:17 AM IST

In 2023, India’s SC rejected marriage equality, but Nepal’s top court rebuked the state for not registering same-sex marriages. What explains the difference?

In the previous column, I wrote about how the 2000s were seminal in ensuring same-sex marriage legalisation in Nepal. A little south of the Himalayan country, the decade starting 2001 was equally significant for the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI+) communities.

In September 2018, the Supreme Court read down section 377 of the penal code, which the top court said, “had become a weapon for harassment for the LGBT community”.(AFP File Photo) PREMIUM
In September 2018, the Supreme Court read down section 377 of the penal code, which the top court said, “had become a weapon for harassment for the LGBT community”.(AFP File Photo)

However, the similarities — and differences — between the two countries lie in the political events of the time.

A quick recap: In Nepal, the democratic people’s movement — what Sunil Babu Pant, Nepal’s first gay legislator described to me as a grounds-up movement — encompassed LGBTQI rights in its larger wish to replace monarchical rule with a constitutional democracy. To that end, the interim Constitution of the country held out the promise to recognise the human rights of queer people.

The Jan Andolan, comprising students, political parties and ordinary citizens led to the setting up of an interim democratic government in 2007.

The same year, the country’s apex court delivered an order that recognised the legal identity of transgender persons and on the issue of same-sex marriage, held that it was the inherent right of adults to marry whom they wish to. The SC at the time also directed the government to form a committee to study the issue of same sex marriage and prepare a report.

When the new Constitution was instituted in 2015, it enshrined the fundamental Right to Equality, under Article 18, which prohibited the state and judiciary from discriminating against gender and sexual minorities. Article 42, or Right to Social Justice, enshrined the right of gender and sexual minorities to participate in state mechanisms and public services. Lastly, Article 12 affirmed the right of citizens of Nepal to choose their preferred gender identity on citizenship documents. The committee, mandated by the Supreme Court, also submitted its report in 2015 — it recommended that laws should be amended, and specific provisions be made in the Bills of Criminal Code and Civil Code to allow same sex marriage.

In India, however, the movement for equal rights was more pointed. The LGBTQI communities rallied around a colonial law, Section 377, which criminalised any kind of sexual intercourse that it termed “unnatural”, and which was interpreted for decades to include consensual adult same-sex relationships. It was in the course of this rallying that we saw connections made with other human rights groups, including children’s rights groups and women’s rights groups.

The movement — if one may call it that — was primarily around a legal case that was heard in the Delhi high court in the mid-2000s. Lawyers and activists rallied public opinion over the legal battle, showing how queer people were denied basic rights like dignity, and were stigmatised for their choice of partners. The lawyers representing the petitioner, Naz Foundation, an HIV/Aids prevention group, held community meetings in different parts of the country which activists attended; queer groups that had formed in the 1990s and early 2000s, began to converse with each on issues pertaining to the law and plan meetings to discuss legal strategies.

By the end of the decade, in 2009, the Delhi HC delivered a judgement that decriminalised homosexuality by reading down the law to not apply to consensual adult same sex relationships.

The crucial difference to note here was that while the desire for equal rights was equally strong, and much work was put in to change public perception, the LGBTQI movement became pan-national in India as groups converged largely over the question of a specific law. And it was the trajectory of the court case that determined the direction this movement took. When the Supreme Court of India, for instance, brought back Section 377 after hearing — and agreeing — with the petitioners that included right wing organisations across religious backgrounds, the movement was galvanised. The case, even when it went against the communities, brought visibility to the movement, and strengthened it. Public opinion began to tilt in favour of decriminalisation as corporates and big capital saw value in appealing to the younger generation of queer people.

But, while Nepal’s communities fought to win recognition of same-sex marriages between 2015 and 2017, the law criminalising homosexuality in India was only read down, this time by a constitution bench of the Supreme Court, in 2018.

Perhaps, then, a more realistic way of looking at the movement is to see it as a verb rather than as a noun. Gay and lesbian groups started forming in the 199s to provide safe spaces for LGBTQI persons. The decade was a time when these groups came out with newsletters and maintained P.O. Box numbers — they even referred people who wrote in to groups in their own cities. Yes, the law was very much in existence and remained a forever threat hanging over the men and women and transpersons who made these groups. But it didn’t stop them from doing what they felt needed to be done.

Gender Question is a weekly column by Premium editor in-charge Dhamini Ratnam on gender, sexuality and our blindspots. The views expressed are personal.

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