After polls, allies & advocates make a good Pride alliance

The return of coalition politics and a diminished BJP is a welcome outcome for LGBTQ+ rights. But this time round, beyond marriage rights, another issue of importance to the transgender community is the implementation of horizontal reservations, writes Kanav Narayan Sahgal

The 2024 Lok Sabha elections proved to be a closely contested affair. While the Bharatiya Janata Party (BJP) emerged victorious with 240 seats, they did so with a marked decline from their dominant performances in 2014 (282 seats) and 2019 (303 seats), suggesting a diminishing public appeal and a growing appetite for change on the part of the electorate. The widespread inaccuracy of exit polls further underscored the limitations of political punditry, as pronouncements of a “400-seat victory” for the BJP proved to be wildly off the mark.

And yet, with the National Democratic Alliance’s (NDA) ultimate victory, Prime Minister Narendra Modi is now poised for a historic third term. However, a crucial question looms: what does this outcome portend for the future of LGBTQ+ rights in India? In the weeks leading up to the elections, the BJP government notified the constitution of a committee headed by the cabinet secretary and comprising secretaries from the ministries of home, law, women and child development, health and family welfare, and social justice and empowerment to “examine the various issues relating to the queer community.” This was in line with the Supreme Court of India’s directions in the 2023 marriage equality case. In it, the Supreme Court declined to recognise queer marriages, instead directing the union government to constitute a high-powered committee to deliberate on the issues put forth by the community and come forward with solutions to assuage their concerns.

While the formation of this committee is a welcome step, it is disappointing that neither civil unions nor marriage equality are explicitly listed on the agenda. Moreover, the fact that the same government that vociferously opposed marriage equality in the Supreme Court is once again in power is also concerning.

In consonance with modern times?

LGBTQ+ activists should note that this is the same government that is keen to introduce a Uniform Civil Code in the country. Their 2024 election manifesto clearly states: “BJP believes that there cannot be gender equality till such time Bharat adopts a Uniform Civil Code, which protects the rights of all women, and the BJP reiterates its stand to draw a Uniform Civil Code (UCC), drawing upon the best traditions and harmonising them with modern times.” However, these words are hollow, because “gender” for the BJP is limited only to heterosexual women.

So even if a UCC proposal were to be put forth, it would automatically exclude queer couples from its ambit. So how can the BJP then say that their version of the UCC aligns with modern times? It is in this regard that the return of coalition politics and a diminished BJP is a very welcome outcome for LGBTQ+ rights.

But beyond marriage rights, another issue of importance to the transgender community is the implementation of horizontal reservations. The recent Madras High Court judgement in the Rakshika Raj vs State of Tamil Nadu case addressed this very concern. In it, the High Court quashed a 2015 Tamil Nadu government order that classified transgender individuals under the Most Backward Class (MBC) category for vertical reservations. The High Court held that this order was unconstitutional because it incorrectly treated the transgender identity as an aspect of caste instead of gender identity. Consequently, the court directed the current Tamil Nadu government, led by Chief Minister M K Stalin (Dravida Munnetra Kazhagam or the DMK), to implement horizontal reservations for transgender people along the intersectional lines of gender identity and caste. Notably, the Dravidian Manifesto, released by the DMK in 2019, advocated for the inclusion of “homosexual persons and trans women” into society and pledged to secure their civil rights. Therefore, implementing the High Court’s order not only aligns with the DMK’s progressive social justice vision but would also signify an important step towards achieving equality for transgender individuals in Tamil Nadu.

Setting the stage

However, this discourse around advancing LGBTQ+ rights must extend beyond Tamil Nadu and should include causes beyond marriage equality. The inclusion of some of these issues in the 2024 manifestos of major opposition parties — the Indian National Congress (INC) and the All India Trinamool Congress (AITC) — reflects a broader national shift towards equality. Additionally, their impressive electoral gains in this election cycle demonstrate that social justice issues, including those related to free speech, rights of Scheduled Castes, Scheduled Tribes, and Other Backward Classes, women’s reservations, and farmers’ rights, are gaining more traction with the electorate. However, the level of support for each cause varies. For example, the 2020 farmers’ protests against the BJP-NDA government’s three farm laws were powerful enough to force a repeal in 2021 due to sustained public pressure. While the LGBTQ+ community’s demands for marriage equality and horizontal reservations haven’t garnered the same level of public support yet, time may change that. Therefore, it’s more critical than ever for the LGBTQ+ community to ensure their concerns are heard by their elected representatives and brought before Parliament whenever necessary. This is especially true for legislation that directly or indirectly affects their lives.

A prime example occurred in 2018 when the Lok Sabha passed the Surrogacy (Regulation) Bill of 2016. Despite protests from Opposition leaders like Supriya Sule (Nationalist Congress Party — Sharadchandra Pawar or the NCP-SP) and Kakoli Ghosh Dastidar (AITC), who advocated for a more inclusive law for the LGBTQ+ community, their efforts were not reflected in the final legislation. This situation arose because the BJP’s overwhelming majority at the time allowed them to pass bills with limited need for consultation. Moving forward, such occurrences must be prevented.

A sliver of hope

But now there are reasons for renewed optimism. Over the years, courts have expanded the scope of LGBTQ+ rights and clarified that discrimination based solely on sexual orientation or gender identity is unconstitutional. Additionally, since decriminalisation in 2018, there has been a greater appetite for public discussion of these issues, with the marriage equality hearings forcing political leaders from major parties to take a public stance, thereby educating voters (including LGBTQ+ voters) on their positions.

The current Lok Sabha composition also offers new opportunities. The BJP undoubtedly retains power but lacks the overwhelming majority it previously held. Opposition parties will now play a more prominent role in discussing and debating bills, and NDA allies like the Janata Dal (United) and Telugu Desam Party, with 12 and 16 seats respectively, will hold the potential to make or break votes on key issues. Therefore, LGBTQ+ activists must strategically engage not only with the opposition but also with NDA allies to secure their support. Finally, the re-election of notable LGBTQ+ allies to Parliament, such as Dr Shashi Tharoor (INC), Supriya Sule (NCP-SP), and Abhishek Banerjee (AITC), offers even more hope that LGBTQ+ issues will be taken up with greater seriousness and vigour. 

Perhaps it is kismet that June is celebrated as Pride Month indeed!

(The author is a Communications Manager at Nyaaya, the Vidhi Centre for Legal Policy and can be reached at [e-mail])