The story so far:
A recent Finance Ministry advisory took a first step at easing some of the difficulties of daily life for queer couples who cannot legally marry. The clarification, along with a Reserve Bank of India (RBI) circular, made it clear to all commercial banks that people from the LGBTQIA+ community and those in queer relationships cannot be prevented from opening joint bank accounts and nominating their queer partners as their beneficiaries.
What are the problems queer people face when their unions are unrecognised?
Supriyo Chakraborty and his partner have been together for 12 years, but when one of them is in hospital or needs to take a medical decision, his partner does not have a legal right to weigh in. “We are scared. Right now, our parents are still alive, so we have managed. But we are getting older. What happens when they are no longer there? For these kinds of life and death decisions, the hospital looks for blood relatives or a legal spouse,” he points out.
If caregiving rights are at the heart of the demand for legally recognised marriages, funeral rites provide an even bleaker example. Earlier this year, a Kochi man named Jebin had to petition the Kerala High Court to be allowed to attend the funeral of his live-in partner Manu who died of injuries sustained in a fall. Manu’s family had refused to accept his body and pay his medical bills as they did not approve of their relationship. The court ruled that Jebin could pay his final respects at the funeral, provided Manu’s family did not object.
Beyond such grave matters, the mundane routines of daily life can all become harder for queer couples. They cannot obtain a ration card as a family; be nominated for the payment of gratuity, provident fund benefits, or insurance benefits as a dependent spouse; or receive tax benefits for payments made on behalf of the spouse. The laws of succession, inheritance, alimony, and maintenance do not take queer couples into account. Their communications are not protected by evidentiary privilege reserved for married couples, meaning they could be compelled to give evidence against each other in court. They cannot donate organs to each other. They cannot adopt a child together.
“In our country, it is marriage that gives a couple access to a bundle of legal rights. It is about so much more than social acceptance,” says Mr. Chakraborty, explaining why he went to court to seek the right to same-sex marriage.
What did the Supreme Court say?
In its October 2023 judgment, the court refused to recognise same-sex marriage, saying that judicial review must steer clear of matters that fall in the legislative domain. However, it also noted that the Constitution protects the freedom of all persons including queer couples to enter into a union, adding that “the failure of the State to recognise the bouquet of entitlements which flow from a union would result in a disparate impact on queer couples who cannot marry under the current legal regime”. It also noted the Union government’s commitment to set up a committee chaired by the Cabinet Secretary to define the scope of such entitlements. This six-member panel — which includes the Secretaries to the Ministries of Home Affairs, Social Justice and Empowerment, Law and Justice, Women and Child Development, and Health and Family Development — was set up in April, held its first meeting in May, and began stakeholder consultations in July. Members of the LGBTQIA+ community have been encouraged to email the committee directly.
Apart from joint bank accounts, the court directed that the panel must consider how to enable partners in a queer relationship to be treated as a part of the same family for the purpose of a ration card. It also noted that “medical practitioners have a duty to consult family or next of kin or next friend, in the event patients who are terminally ill have not executed an Advance Directive. Parties in a union may be considered ‘family’ for this purpose.” The court directed the panel to consider jail visitation rights and the right to access the body of the deceased partner and arrange the last rites, succession rights, financial and material benefits, and rights flowing from employment such as gratuity.
What kind of changes in rules are needed?
Even before last month’s advisories from the Finance Ministry and the RBI, some banks claimed that their inclusive policies allowed queer couples to nominate each other as beneficiaries and open joint accounts over the last few years. Mr. Chakraborty dismisses such claims as a “marketing gimmick”, noting that bank branch employees had not been given the sensitivity training to back up the policies proclaimed from their headquarters. “The local clerk simply trades in familiar stereotypes. But now that we have a government order, we can demand our rights. Legal backing is essential,” he says.
Similar advisories from the insurance regulator, the State departments in charge of the Public Distribution System, medical boards’ guidelines, and the Income Tax department may be sufficient for some benefits to be made accessible to queer couples. However, amendments to family and inheritance laws, the Juvenile Justice Act, and the Income Tax Act may need to be passed by Parliament and State legislatures to make deeper changes.
“We tried to get ourselves a bouquet of rights through the petition [to recognise same-sex marriages], but that did not work. So now, it is a longer slog to gain each of them one by one,” says Mr. Chakraborty.
Published - September 15, 2024 03:43 am IST
