From opposing the legalisation of same-sex marriage in the Supreme Court of India initially to maintaining a diplomatic silence after the Court handed down its eventually disappointing judgment in 2023 (in Supriyo @ Supriya Chakraborty & Anr. vs Union of India), the Congress party has released its Nyay Patra, its election manifesto for 2024, which has a dedicated section on the rights of senior citizens, persons with disabilities, and LGBTQIA+ people. The party promises that, if elected to power, they would fulfil the Court’s mandate of ensuring a high-powered committee at the Union government level is set up to hold widespread consultations with relevant stakeholders to pass a law legalising civil unions for LGBTQ+ couples.
A few things must be noted here. First, during the marriage equality hearings, Solicitor General Tushar Mehta, appearing for the Bharatiya Janata Party government, opposed marriage equality and sought the views of all States and Union territories. At that time, there was a studied silence by the Congress. However, the Rajasthan Congress, led by Chief Minister Ashok Gehlot, weighed in, stating in his submissions that legalising same-sex relationships would create “imbalance” in the social fabric of the country, and would lead to “widespread consequences for the social and family systems”. What these consequences were and how legalising such marriages could lead to “imbalance” and not “inclusion” remains a mystery.
State responses
As per the Centre’s submissions, Assam (led by Assam Chief Minister Himanta Biswa Sarma of the BJP) and Andhra Pradesh (led by Andhra Pradesh Chief Minister Y.S. Jagan Mohan Reddy of the YSR Congress) joined Rajasthan in opposing same-sex marriage. Meanwhile, Maharashtra (led by Eknath Shinde of the Shiv Sena), Uttar Pradesh (led by Yogi Adityanath of the BJP), Manipur (led by N. Biren Singh of the BJP), Sikkim (led by Prem Singh Tamang, of the Sikkim Krantikari Morcha), and Assam (led by Himanta Biswa Sarma of the BJP) sought more time to examine the issue. Trinamool Congress leader and West Bengal Chief Minister Mamata Banerjee, when asked about the issue, said rather diplomatically, “I love people who love others. This matter is sensitive, and I have to see the pulse of the people.” In short, not a single State government expressed support for the cause.
Once the judgment was eventually pronounced, Communist Party of India (CPI) leader and Rajya Sabha MP, Binoy Viswam, was one of the few lone political voices displaying solidarity with the LGBTQ+ community, calling the judgment “unfortunate.” Congress leader and Rajya Sabha MP, Jairam Ramesh also weighed in, stating that the party was “studying” the different judgments (there were four separate opinions). The end result, it seems, is the promise in the Nyay Patra for a law on civil unions for LGBTQ+ couples. Here too, the Congress stopped short of guaranteeing marriage (civil unions are not the same as marriages).
It is also rather odd that the Congress party promises passing a new law on civil unions even before starting the consultative process and prematurely foreclosing the possibility of recognising LGBTQ+ marriages (civil unions are not the same as marriages). As Mr. Ramesh pointed out earlier, the Congress has, in his opinion, always been “a party of inclusion.. that firmly believes in non-discriminatory processes.” If that is the case, how can the exclusion of LGBTQ+ couples from the institution of marriage, yet again, sit in accordance with the Congress’s own purported principles of non-discrimination and inclusion?
Even the CPI(M) general election manifesto contains a promise for legally recognising and protecting same-sex couples’ rights in a form “similar to marriage” — but not the same as marriage. LGBTQ+ couples, it seems have “partial allies” among the Opposition and no allies within the ruling BJP on this issue.
A subject in the concurrent list
If opinion polls are anything to go by, the BJP is projected to win comfortably in the general election. That said, State governments still have a lot of latitude to pass laws favourable to LGBTQ+ couples. Just as Uttarakhand became the first State in independent India to implement a Uniform Civil Code, one that not only excludes LGBTQ+ couples from its ambit but also criminalises non-disclosure of live-in relationships among heterosexual couples, so too could State governments pass progressive laws recognising LGBTQ+ couples and expanding state benefits to them.
No State in India, including those governed by Opposition parties, has done this so far. Marriage and divorce, after all, fall in the concurrent list of the Indian Constitution, meaning that both State and central governments have latitude to pass laws on this subject.
While it is significant that the Congress and the CPI(M) have added LGBTQ+ rights to their manifestos, their half-hearted approach defies their liberal credentials and begs the question whether they genuinely care about LGBTQ+ rights or are just queer-baiting, trying to woo the LGBTQ+ vote by handing out breadcrumbs instead of the actual pie.
Kanav Narayan Sahgal is Research Fellow at the Vidhi Centre for Legal Policy
