Part I:

In recent times, South Asian courts have been deeply engaged in important discussions concerning fundamental aspects of Queer rights. These encompass issues such as Queer Marriage Rights in India and Nepal, Gender Identity Rights in Pakistan, the Decriminalization of Sodomy laws in Sri Lanka, India’s Blood Policy affecting the Queer community, and Horizontal Reservation for transgender individuals in India. An underlying theme arising from these instances revolves around the intersection of International Law and Queer legal theories in expanding fundamental rights. This contribution, divided into two parts, particularly delves into one contemporary matter pertinent to India and Nepal, namely Queer Marriage Rights, as a means to understand the broader implications and contributions of international legal perspectives.

At the core of queer theory lies the notion of ‘queerness’, aptly described by Prof. Dianne Otto as an evolving process and a multi-dimensional dialogue, rather than a rigid framework. This concept, as argued by Prof. Gonzalez-Salzberg, involves challenging established norms, rejecting the conventional, and questioning prevailing standards. This fluidity is reflected in international legal arenas, where queer legal theory has found its footing in various avenues, particularly within International Human Rights Law (IHRL). Within IHRL, a concerted effort has been made to foster inclusivity and acknowledge the rights of queer individuals and communities.

In April 2023, the Constitution Bench of the Indian Supreme Court (SCt) commenced hearings on marriage equality for queer individuals. A central question posed before the Court was whether queer individuals possess the fundamental right to marry as granted by the Indian Constitution. Unlike the IHRL, the Indian Constitution’s Fundamental Rights section does not explicitly address the right to marry. In response, the Petitioners drew upon IHRL principles, including international treaties such as the UDHR, ICCPR ICESC, and CRC.

Moreover, the Petitioners referenced decisions from international human rights courts such as the IACtHR and the ECtHR. They also looked at comparative constitutional interpretations of countries like the United States, the United Kingdom, and South Africa, among others. The primary objective of the Petitioners was to establish the recognition of marriage rights for the queer community through the framework of IHRL. They aimed to utilize the Indian Human Rights Act of 1993, defining ‘human rights’ as a universally upheld concept guaranteed by the Constitution and enshrined in international covenants, thereby making these rights enforceable by Indian courts.

The recognition of marriage rights for queer individuals in India and the extent to which the Indian Court will integrate IHRL are subjects of uncertainty. However, examining the historical trajectory of the Indian Court’s decisions becomes pivotal in determining the current possibilities. In the context of queer marriage rights, this examination underscores the emerging potential for the Indian Court to align with IHRL principles and incorporate Queer Legal theories, to enhance the fundamental rights of the queer community.

Illustratively, the Indian SCt has, in cases such as Navtej v UOI (2017), NALSA v. UOI (2014), Deepika v. CAT (2022), and X v. NCT (2022), significantly challenged conventional notions of gender identity and sexual rights through the lens of Queer theories. In NALSA v. UOI (2014), the Court articulated its argument for the legal recognition of transgender individuals on the principles outlined in the UDHR, ICCPR, ICESCR, CAT, and Yogyakarta principles. International Human Rights courts’ decisions, like Goodwin v. UK (2002) and Van v. Germany (2003), also provided the Court with a framework to understand the discrimination faced by transsexual individuals within society.

Moreover, the Court’s decisive move to decriminalize the notorious Section 377 heavily leaned on IHRL principles and Queer theory. This stance was supported by Elvia Arriola’s scholarship, which spotlighted the perpetuation of fixed gender roles as a promoter of cultural homophobia. By deconstructing binary gender constructs, the Court endorsed that construing gay relationships as abnormal merely upholds entrenched societal norms that challenge the diverse spectrum of sexual orientations. (Chandrachud, ¶ 44)  References to the scholarly works of Zachary Kramer and Bennett Capers further emphasized the intricate links between sexual orientation, gender roles, and stereotypes, rendering the isolation of discrimination based on sex untenable.

Equally significant is the Court’s emphasis, citing Koppelman’s argument, on how the prohibition of homosexuality buttresses social hierarchies by reinforcing traditional gender norms. (Chandrachud, ¶ 46). By dismantling rigid gender roles and highlighting the socially constructed nature of normalcy, the Court’s stance against denying same-sex couples the right to marry underscores the perpetuation of discrimination and marginalization. It is furthermore an opportunity to invoke scholarships like Judith Butler and Michel Foucault to substantiate the interconnectedness of discrimination, stereotypes, and human rights violations. By paralleling the historical taboos surrounding interracial relationships with the denial of same-sex marriage, the Court can effectively draw attention to the continuance of societal hierarchies.

The Court’s ruling in Deepika v. CAT (2022) assumes considerable significance in the ongoing discourse on same-sex marriage. This ruling, which broadened the interpretation of “family relationships” within Indian society to encompass queer relationships, challenges conventional norms and aligns with queer theories. The Court’s decision not only acknowledges diverse family structures but also underscores the need to appreciate the intricate validity of Queer relationships. In turn, this contributes to advancing Queer rights and the momentum toward legalizing same-sex marriage. The ruling’s critique of heteronormativity and its emphasis on emotional connections over biological roles mark a progressive shift towards inclusivity.

Additionally, the Court’s stance in the case of X v. NCT (2022) wherein the definition of “women” was expanded to include individuals capable of giving birth, aligns with queer theories’ emphasis on transcending binary norms. This expansion provides a foundation for recognizing non-binary and transgender individuals’ rights within the sphere of marriage. Acknowledging the complexities of gender and reproductive capacities, as demonstrated by the Court’s move, affirms the perspective that identities and relationships are not bound by fixed categories. Applying this perspective to the legalization of queer marriage rights could lead to an argument that the institution of marriage should transcend traditional gender roles and reproductive expectations. 

While the Indian Court’s approach to recognizing queer individuals’ marriage rights remains uncertain, its past rulings signal a willingness to engage with IHRL and Queer Legal theories to challenge societal norms and endorse inclusivity. The incorporation of international human rights norms and precedents underscores a broadened perspective and a commitment to addressing the discrimination faced by the queer community in India.

Find Part 2 of this piece here.

Sarthak Gupta is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India (New Delhi). He completed his B.A.; and L.L.B (Hons.) from the Institute of Law, Nirma University, Ahmedabad, India.