Progress and Challenges: Legal Rights and Entitlements for Queer Couples in India

Progress and Challenges: Legal Rights and Entitlements for Queer Couples in India

Sub: Polity

Sec: Constitution

Why in the News

A recent Finance Ministry advisory, along with a Reserve Bank of India (RBI) circular, has taken a small but significant step towards easing some of the difficulties faced by queer couples in India. This includes allowing LGBTQIA+ individuals to open joint bank accounts and nominate their partners as beneficiaries. However, there remains a broader struggle for legal recognition and entitlements for queer couples, which continues to be a pressing issue.

Finance Ministry Advisory and RBI Circular: The Finance Ministry advisory and RBI circular now permit queer couples to open joint bank accounts and nominate their partners as beneficiaries.

• Permission to Open Joint Accounts: LGBTQIA+ individuals are allowed to open joint bank accounts with their partners.
• Nomination Rights: Partners in queer relationships can be nominated as beneficiaries in joint accounts and other financial instruments.
• Non-Discrimination Clause: Banks must ensure that their policies do not discriminate against individuals based on sexual orientation or gender identity.
• Legal Framework: The circular reinforces that the rights of LGBTQIA+ individuals to access financial services should be protected, aligning with broader legal and human rights frameworks.

Formation of Six-Member Panel: A six-member panel, including Secretaries from various ministries, was established to define the scope of entitlements for queer couples.

The panel is tasked with addressing issues such as ration cards, medical decisions, jail visitation rights, succession rights, and other legal benefits.

About LGBTQIA+

The LGBTQIA+ acronym stands for lesbian, gay, bisexual, transgender, queer or questioning, intersex, and asexual. The + represents the evolving understanding of gender and sexual identities.

• The country has repealed its colonial-era laws that directly discriminated against homosexual and transgender identities and also explicitly interpreted Article 15 of the Constitution to prohibit discrimination on the basis of sexual orientation and gender identity. But many legal protections have not been provided for, including same-sex marriage.
• In 2018, in the landmark decision of Navtej Singh Johar v. Union of India, the Supreme Court of India decriminalised consensual homosexual intercourse by reading down Section 377 of the Indian Penal Codeand excluding consensual homosexual sex between adults from its ambit
• SC in its judgement specifically said that the Right to Privacy and the protection of sexual orientation lie at the core of the fundamental rights guaranteed by Article 14(Equality before Law), Article 15 (Prohibition of discrimination on the basis of race, religion, caste, sex, place of birth), Article 21 (Protection of life and liberty) and Article 19 (Freedom of expression) of the Constitution.
• Supreme Court stated that the ‘Yogyakarta Principles on the Application of International Law in Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian law.
• Yogyakarta Principlesrecognise freedom of sexual orientation and gender identity as part of Human Rights. They were outlined in 2006 in Yogyakarta, Indonesia by a distinguished group of International Human Right experts.

Supreme Court Ruling on Same-Sex Marriage (October 2023)

• The Supreme Court did not recognize same-sex marriage but acknowledged that the Constitution protects the right of all individuals, including queer couples, to form unions.
• The Court highlighted the need for the State to recognize entitlements associated with such unions and emphasized the setting up of a committee to address these issues.

Areas Requiring Legal Changes

• Legal backing is crucial for enforcing these policies and ensuring equitable treatment.
• Family and Inheritance Laws: Amendments are needed to include queer couples in family and inheritance laws.
• Juvenile Justice Act and Income Tax Act: Legislative changes in these areas may be required to provide comprehensive rights and benefits.
• Insurance Regulators: Similar advisories from insurance regulators could help in making benefits accessible to queer couples.
• Public Distribution System: State departments may need to adapt policies to include queer families.