An LGBTQ revolution in India sets the pace for global change

The US took more than a decade to rule on marriage equality after decriminalisation. India is on track to cut that timeframe in half
Last Updated : 10 March 2023, 03:12 IST

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By Kai Schultz and Muneeza Naqvi

Aditi Anand and Susan Dias want to get married in India, and they’re willing to fight for it.

For more than a decade, the couple put in the hard work of building a life together. They bought a house, adopted a child and cofounded companies. They came out to their families and marched in pride parades.

This year, Anand and Dias became part of the first group of Indians to petition the Supreme Court for the legal right to marry. In doing so, they’ve come to symbolise a remarkable wave of change in India, where grassroots lobbying and aggressive litigation have converged in recent years to shape one of the world’s most effective movements for rights for LGBTQ people.

In quick succession, India’s Supreme Court has affirmed a constitutional right to privacy, toppled a colonial-era law criminalizing sex between men and expanded legal protections for “atypical” families, a category that includes same-sex couples as well as blended and intergenerational households. Companies run advertisements with same-sex couples to sell everything from jewelry to spirits to insurance. And India’s massive film industry, where onscreen kisses were once rare, regularly features lesbian and gay characters.

“For a lot of the general public, the notion is, ‘Why are you making such a fuss?’” said Niharika Karanjawala, a lawyer representing one of several couples petitioning the court in India. “It literally comes down to every aspect of your life. You can’t have a bank account with your partner. You can’t often have them as beneficiaries on your insurance. You can’t make end-of-life decisions.”

Proceedings in India, which are scheduled to begin on Monday, could set a precedent around the world. A judgement for the plaintiffs would more than double the number of people globally with marriage equality rights, eventually cementing inheritance, adoption and other protections for all 1.4 billion Indians. Just a handful of places outside of the West — and only Taiwan in Asia — allow same-sex marriage. India’s case is being closely watched in countries like Thailand, Greece, Japan and South Korea, where similar debates are gaining momentum.

With Asian financial hubs like Singapore and Hong Kong resisting calls to legalize gay marriage, India could potentially use the ruling as leverage in the global scramble for talent. The issue may also provide Indian Prime Minister Narendra Modi, who is hosting the Group of 20 summit this year, with ammunition to rebut criticism over his government’s spotty human-rights record — including discriminatory measures against Muslims, a religious minority, as well as an erosion of press freedom.

Indian lawyers and activists are optimistic about the outcome. The ruling Bharatiya Janata Party previously opposed broadening the Hindu Marriage Act, which applies to most of the population, but Modi’s government has so far been silent on the current challenge and ultimately has limited influence on the verdict. India’s Supreme Court is led by a chief justice who has spoken in favor of equal rights for LGBTQ people.

The US took more than a decade to rule on marriage equality after decriminalization. India is on track to cut that timeframe in half.

“It would be an enormous boost to same-sex relationship recognition globally if this were to happen in India,” said Kyle Knight, who researches LGBTQ issues at Human Rights Watch. “Anytime you have progress in another country, especially one as large and influential as India, some of the edifice of the counterarguments starts to fall away.”

Despite recent legal advancements, a ruling for the plaintiffs would still mark a seismic shift in India, where marriage often functions like a social pact between two families. Many Indians object to homosexuality on moral grounds; even more tolerant families pressure their children to pick partners of the opposite sex and similar background. In pockets of the country, especially outside of the bigger cities, the consequences of living openly can be severe: harassment and social isolation, few protections in the workplace and a frightening vulnerability to sexual abuse with limited legal recourse.

To sidestep those issues, many of the petitions before the Supreme Court are specific to India’s secular marriage codes, a strategy lawyers hope will avoid landmines associated with amending laws bound to religion. They’re building their case around the idea that marriage equality is about fundamental rights under India’s constitution — not a moral litmus test.

“We’re asking a very simple question: Do they think we’re worthy?” said Dias, 35, who works in the spirits industry. “Do we get that right? I want to know what the court thinks about me, about my partner and about my family.”

Modern India’s relationship to these issues is complex. In Hindu mythology, gods transform into goddesses, or they cross-dress. Men become pregnant. Rekhti, a genre of poetry that flourished on the subcontinent from the 1700s, describes erotic encounters between women.

That acceptance eroded with the arrival of the British, according to Ruth Vanita, a South Asian historian and the author of several books on the topic. Colonizers introduced Section 377 of the Indian Penal Code in 1861. The law — generally applied to sex between men — imposed up to a life sentence for “carnal intercourse against the order of nature.”

“Over the course of the next century, English-educated Indians, especially social reformers and nationalists of all stripes, internalized the new view of same-sex relations as unnatural,” Vanita said. “They tried to clean up the Indian literary canon by removing all references to the topic.”

Undoing that legacy took many more decades. The movement began in earnest in 2001, when the Naz Foundation, an HIV advocacy group in Delhi, filed one of the first legal challenges to the colonial-era law. It took more litigation and 17 years, but in 2018, a more progressive bench revisited the issue. After hearing challenges from more than two dozen people, including a prominent chef, leading hoteliers and an Indian classical dancer, the court unanimously struck down the law and apologized for the delay in ensuring rights for LGBTQ people.

Since that verdict, lawyers started charting a path for marriage equality, buoyed by a string of related victories in India’s courts.

“Things have moved very fast,” said Anurag Kalia, 30, one of the Section 377 petitioners in 2018. He was once so afraid to say the word “gay” that he practiced doing so in front of the mirror. Now an engineer living in Bengaluru, he wonders whether the law is catching up with public perception — and not vice versa. His employer was quick to amend health benefits policies to include same-sex partners.

“There’s a general ‘live and let live’ attitude among a lot of people I meet,” Kalia said. “Since the decriminalisation, I have come out to my family. I have met my partner’s parents. I have seen the acceptance go very smoothly.”

With the spread of social media, Kalia’s generation took cues from movements abroad. Exposure to international media is high in India, which has a large diaspora and strong English proficiency. In recent years, the Supreme Court has expanded rights on many social issues, including allowing women entry into a sex-segregated temple and ruling that transgender people can choose to identify as a “third gender” with legal recognition.

Credit: Bloomberg Photo
Credit: Bloomberg Photo

India is 80 per cent Hindu, so religion may not give fodder to objections the way it does in majority Christian or Muslim countries. Recently, the leader of the Rashtriya Swayamsevak Sangh, a powerful Hindu group linked to Modi’s party, said LGBTQ people should “feel that they, too, are a part of the society.”

Public opinion, though, is unclear. Most weddings in India are still arranged and sizeable swaths of the population see the debate as a western import. Recent polls offer contradictory conclusions. Support for same-sex marriage has ranged from a quarter to more than two-thirds of respondents.

Vidya Rajput, a transgender activist, said evolution takes time, but the courts have played a central role in softening hearts. She recently convinced officials in her home state of Chhattisgarh to amend school textbooks to include sections about LGBTQ people, provide free housing to dozens of transgender Indians and recruit members of the queer community for civil service jobs.

“When the law legalizes something that builds confidence,” she said. “People are understanding that this isn’t a disease and it’s not to be treated as a stigma.”

For Aditi Anand and Susan Dias, who agreed last year to petition the Supreme Court, the pace of change is dizzying. In 2012, when they met at a queer book club in Mumbai, marriage was an impossible idea. India had pride parades, but many participants wore masks to hide their identities; the pair used aliases on social media to find others like them.

During debates about books like The Color Purple, the two were often at loggerheads. Anand, who moved to Mumbai from Delhi, was gregarious and expressive, the kind of person who “likes setting up subcommittees.” Dias was quieter, angrier and suspicious of the stranger with “a big heart” who talked about “heteronormativity and the human condition.”

Their love story was one for the internet age. “This phone is a spaceship,” Anand joked in her first text message to Dias. Two days later, Dias responded: “Who is this?”

But the hard edges soon softened. Within a few months, Dias moved in with Anand and quit her corporate job, where, she said, she struggled to “find a pathway in which I could be out.” They got a dog together, planned trips and wandered Mumbai’s beachfront neighborhoods.

One December evening, Dias came out to her parents. The next morning, Anand sat down for breakfast with her family and did the same thing. Later that day, her mother brought out gold jewelry, a traditional engagement gift. “This is for Susan,” she told her daughter.

“I broke down,” said Anand, 39, a filmmaker and producer. “I realized the fear wasn’t just about them. The fear was also about being gay.”

Over the years, the couple watched India embrace their relationship in ways that surprised them.

Billboards started to appear on the highway advertising life insurance benefits for same-sex couples. Landlords, neighbors and local vegetable vendors doted on their son, whom they adopted after moving to Delhi during the pandemic. School administrators amended forms that only contained fields for “mother” and “father.”

“That means they’re accepting the child and they’re accepting the family,” Dias said.

When lawyers asked Anand and Dias if they’d petition the Supreme Court for marriage rights, the couple spent weeks consulting friends and family. They worried their son might encounter harassment, then considered that under the current laws, only one of them is his legal parent. The couple don’t want him to grow up with the shame that tormented their generation.

“I want him to be free, and to be able to tell people ‘I have two mothers,’” Dias said. “Whatever happens with this petition, he’ll know we did it. He’ll know we tried. He should know that we were brave.”

Lawyers are optimistic that a ruling could come within six months. No large protests have taken place against marriage rights and even if the government opposes legalization, officials aren’t likely to delay a verdict unless the issue becomes a flashpoint ahead of next year’s national elections.

Last year, the Supreme Court offered a hint at how the case might go, expanding the definition of a family to include same-sex couples and ruling that such partnerships are entitled to social welfare benefits.

Regardless of the outcome of this case, Anand and Dias believe marriage rights are inevitable, paving the way for smoothing out procedures around adoption, immigration and inheritance. Though India is still deeply conservative on many issues, the couple said it’s also a place with a soft spot for a good love story. With that backdrop, Anand said, maybe the country is finally ready for hers.

“A marriage is supposed to be the love of two people, the home that you create between yourselves, the next generation that you nurture, the families that come together,” she said. “We’ve done all of that. There’s no reason for it not to be acknowledged.”

Published 10 March 2023, 03:12 IST

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