Rights of same-sex couples in India: finally a happy ending?

Do you belong to the LGBT community or in a same-sex relationship and are you moving to a socially conservative country like India for a longer period for work, business or what have you? There is good news! In 2018, India has become the 126th country in 2018 to recognize the LGBTQ rights and being a gay or lesbian is no longer a crime.

Historical court ruling for LGBT community, hence same-sex couples

In July 2009, the Criminal Court in Delhi had decriminalized homosexuality among consenting adults, because criminalization would be in violation of the Indian Constitution.

In December 2012, the Supreme Court of India annulled the decision of the Court of Appeal because it would be "legally unsustainable". According to the judges, a miniscule part of the population would belong to the LGBT community. Moreover, in the past 150 years, fewer than 200 people would have been prosecuted for committing 'offenses' (including having sex with people of the same sex) under the current laws against homosexuals. 

In another case, however, the Supreme Court, judging the right to privacy, decided that the protection of sexual orientation is also the core of fundamental rights.

After this, a number of prominent figures in India - who were directly affected by current legislation - filed petitions (Public Interest Litigation) against the judgement from 2012. In July 2018, the Supreme Court finally started hearing these petitioners. In September, the Supreme Court decriminalized homosex, with India joining 125 other countries where homosexuality is legal.

Comment court ruling

It is without doubt that the abolition of the anti-gay law will encourage companies to pursue an inclusive employee policy without discrimination on the basis of sexual orientation. The latter, for example, was noticeable the day after the verdict when the company Tech Mahindra fired an employee who had been accused by an ex-employee of intimidation and discrimination on the basis of sexual orientation. The company added that the company believes in diversity and inclusiveness, and condemns "discrimination of any kind in the workplace''.

India is still a largely conservative country and the movement for LGBT rights is most visible in large cities such as Delhi, Mumbai and Bengaluru. Despite the historical statement, many people in the country remain opposed to homosexual relationships. It is also important to note that the decriminalization of homosexuality does not mean that 'same sex couples' are equivalent to hetrosexual couples.

The recognition of a 'same sex couple' as valid and on the same foot as a heterosexual marriage would probably require appropriate legislation that will take a few more years. It also requires a major social transformation and a more liberal and progressive view by the government. Until this happens, the LGBT community remains at a disadvantage, despite the rhetoric and the powerful language used by the learned judges in this ruling.

Same-sex expat couples in India 

Although the Indian Supreme Court has decriminalized LGBT rights to have same sex partners, since the government is still to recognize marriage between same sex partners, dependent visa for a same-sex partner is yet not possible.This will allow coterminous multiple entry dependent visas and the same residential rights as married expat couple while working or accompanying as a dependant spouse in India.

Miss Legal India

Are you an expat and do you have questions about your rights in India or situation on the work floor? Please feel free to contact Miss Legal India.

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