What are India’s current laws on LGBTQ+ issues?
Date: 12-05-2023
India’s penal code, introduced under British rule in 1862, criminalized all homosexual acts by deeming them “against the order of nature.” That remained the case until the colonial-era law was struck down in 2018 by the Supreme Court.
As a result of the landmark 2018 ruling, acceptance of homosexuality has grown in India. A 2021 Ipsos survey found that 58% of Indians believe that same-sex couples should be allowed some sort of legal recognition, and 66% believe that same-sex couples should be able to adopt children. Another Pew survey in 2020 found that 37% of people believed that same-sex marriage should be accepted in the country, up from 15% in 2014.
But the Indian government, led by Modi’s Bharatiya Janata Party, has formally opposed the issue of same-sex marriage, even as many lawmakers take a different view. According to Pink List India, the country’s first archive of politicians supporting LGBTQ+ rights, 115 of 161 Members of Parliament who have publicly weighed in on the same-sex marriage debate have expressed support, with most of them belonging to the ruling BJP.
Nevertheless, the Indian government preemptively urged the Supreme Court to reject all pleas challenging the current legal framework, saying that there was a “legitimate state interest” in limiting the legal recognition “to marriage/union/relation as being heterosexual in nature,” according to the legal filing seen by Reuters.
Global practices:
- The European Court of Human Rights, in Dudgeon vs UK (1981): struck down the offense of buggery in Northern Ireland as violative of Article 8 of the European Convention on Human Rights.
- The court thus adopted a privacy approach and did not go into the question of equal treatment under Article 14.
- Oliari vs Italy(to seek marriage rights in Italy): The court reasoned that states could not be obligated to grant marriage equality, provided there was some form of legal recognition of their rights
- Fourie (2005)(South Africa): the Constitutional Court rejected the state’s argument that the Constitution only protected the right to establish family in private life without state interference and not to marry.
- S-(Lawrence vs Texas 2003) and granted marriage equality (Obergefell 2015): Both under the due process clause of the Fourteenth Amendment of its Constitution
- It prohibits the state from taking away personal liberties without substantive and procedural fairness.