3 April 2022 5:15 AM GMT
"God save us from people who mean well." ― Vikram Seth, A Suitable Boy Introduction On 9th August 1970, the President of India assented to The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968 to enlarge the appellate jurisdiction of the Supreme Court in criminal matters. This would have been an ordinary occurrence usually, but what made it stand out was that it...
"God save us from people who mean well."
― Vikram Seth, A Suitable Boy
On 9th August 1970, the President of India assented to The Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Bill, 1968 to enlarge the appellate jurisdiction of the Supreme Court in criminal matters. This would have been an ordinary occurrence usually, but what made it stand out was that it was tabled by the Urdu poet and a former judge of the Allahabad High Court, Anand Narain Mulla, a member who was not a minister. Any bill in either of the two houses of the Indian Parliament that is not tabled by a minister is called a Private Members' Bill. Since then, no private member's bill has been passed by both the houses and become a law.
That bit of trivia notwithstanding, the purpose of this article is to analyse the three recent bills introduced in Lok Sabha by Supriya Sule, Aparupa Poddar, and Dr Senthilkumar S. and examine the implications of such bills being tabled (albeit not passed) in the parliament. Notably, at the time of writing this article, these bills are not uploaded to the website of the Lok Sabha, but Ms. Sule and Dr. Senthilkumar have tweeted copies of their bills which I am relying upon. Since the third bill (which sought to prohibit conversion therapy) is not available in the public domain I will not go into critiquing it.
The Special Marriage (Amendment) Bill, 2022
This bill was tabled by NCP member and MP for Baramati, Supriya Sule. According to PinkList India, an archive that tracks politicians' support for queer issues, Ms. Sule has been a vocal advocate for the queer community and has spoken on a range of topics including the trans act and queer rights. She was one of the few politicians that opposed s. 377 before it was struck down.
The Bill sought to insert section 4A to the Special Marriage Act allowing for marriage between two males who have completed 21 years, or between two females who have completed 18 years. Notably, the bill leaves out transgender, gender non-conforming, agender, and intersex persons. It also sought to replace the words husband or wife with spouse in sections 15, 22, 23, and 27. Were it to pass, it would render some petitions before the Delhi High Court infructuous. However, with the government opposing gender neutral application of the Special Marriage Act in the Delhi High Court, this bill will not pass.
The Special Marriage Act is notorious for having cumbersome requirements for straight couples to get married. It requires public notice, invites objections and has a waiting period. These requirements will only be burdensome for queer persons who want to marry, but almost render it impossible if they seek to do so without the approval of their families as is the case with most queer persons. Not only that, but the public notice might also put their lives at risk by vigilantes as has been done for inter-faith couples under the so-called 'love jihad' laws. Saptarshi Mandal, an Assistant Professor of Law at Jindal Global Law School, also notes that the Special Marriage Act also implicates Hindu Law and since this action does not amend Hindu Marriage Act, it will be prohibitive in its application. According to S. 21A of the Special Marriage Act, even if two Hindu are married under the Special Marriage Act, they will be continued to be governed by the Hindu Succession Act. Thus, in their view, unless Hindu law also recognises same-sex marriage, this section is inoperative. It would also be pertinent to note at this juncture that mere equal marriage does not imply equal rights unless all the ancillary rights such as the right of inheritance are also protected.
Any amendment that is not inclusive or makes marrying difficult for queer persons needs to be re-examined. Having said that I must also note that marriage is not an end goal for all queer couples and certainly not the queer rights movement, and there have been concerns raised if the marriage movement also adequately addresses issues around caste which are inherent in the Indian marriage ecosystem.
Equal Protection of Rights for LGBTQIA+ Persons Bill, 2021
The second bill was tabled by Dr. Senthilkumar S., which sought, perhaps for the first time, a fixed charter of rights for the 'LGBTQIA+ community'. The bill sought to provide a plethora of rights including abortion, guardianship, and surrogacy. It also sought to prevent discrimination in housing and at the workplace, sexual harassment and bullying in education.
The terms that the bill defined were strife with problems too. A primary reading of S. 2(b) which defines sexual orientation coins a hitherto unknown definition that would baffle scholars of gender studies. According to it, sexual orientation refers to a person physically, emotionally or oriented toward another person. It also wrongly defines queer as a person having a non-binary or gender-fluid identity. The term, generally, is used as an umbrella term for ALL members of the LGBTAQIA+ community and not just gender fluid or non-binary persons.
Morever, the bill does not amend the existing statutes that would be required to realise these rights. As it now stands, the bill would require major amendments to the Surrogacy Act, Personal laws, Surrogacy (Regulation) Act, Artificial Reproductive Technologies Act. The bill does not provide for such amendments. But this was not the only problem. The bill did not define what each right would entail. Would a right to surrogacy mean the right to commission surrogacy or a right to become a surrogate? What does discrimination at the workplace mean? Secondly, it ignored the fundamental principle of protecting rights by not defining the enforcement mechanism and not providing any remedy. How would such rights be enforced? Would they give rise to civil or criminal liability? This bill ends up raising more questions than it answers.
Of Parliaments, it is said that the government must have its way and the opposition must have its way. Private members' bills are just that. The opposition has its say without the bill turning into an act. They are a gesture by the MPs to the causes that they support that they will raise their voices in parliaments. As I said earlier, no private members bill has been passed since the 1970s, since independence only 14 such bills have had the distinction of being made into law. With polarisation in the politics of the country increasing by the day, I doubt we will see another private members' bill be passed soon.
The road to hell is paved with good intentions. These bills exemplify it. There were no consultations with the members of the queer community to my knowledge while they were being drafted or tabled. Bills need to be drafted better by MPs and in consultation with the stakeholders. But before one is accused of being pessimistic, I must confess that the fact that queer-friendly legislations are being tabled in Parliament is not something I would not have envisaged a few years ago as a queer person. These bills are a pleasant surprise, a hope for a more inclusive tomorrow, and hopefully not the end. One also hopes that this is not a mere pinkwashing of the legislative tenures or mere virtue signalling, and the MPs continue to speak up for other queer causes including the regressive Trans Act and the demand for horizontal reservations for transgender persons.
(Rohin Bhatt, Master of Bioethics Candidate at Harvard Medical School and Co-Founder, Indian Bieothics Project, Alumni Editor, GNLU Issues in Science, Law and Ethics. He can be reached at email@example.com. He tweets @BhattRohin)