Part I:
In recent times, South Asian courts have been deeply engaged in important discussions concerning fundamental aspects of Queer rights. These encompass issues such as Queer Marriage Rights in India and Nepal, Gender Identity Rights in Pakistan, the Decriminalization of Sodomy laws in Sri Lanka, India’s Blood Policy affecting the Queer community, and Horizontal Reservation for transgender individuals in India. An underlying theme arising from these instances revolves around the intersection of International Law and Queer legal theories in expanding fundamental rights. This contribution, divided into two parts, particularly delves into one contemporary matter pertinent to India and Nepal, namely Queer Marriage Rights, as a means to understand the broader implications and contributions of international legal perspectives.
At the core of queer theory lies the notion of ‘queerness’, aptly described by Prof. Dianne Otto as an evolving process and a multi-dimensional dialogue, rather than a rigid framework. This concept, as argued by Prof. Gonzalez-Salzberg, involves challenging established norms, rejecting the conventional, and questioning prevailing standards. This fluidity is reflected in international legal arenas, where queer legal theory has found its footing in various avenues, particularly within International Human Rights Law (IHRL). Within IHRL, a concerted effort has been made to foster inclusivity and acknowledge the rights of queer individuals and communities.
In April 2023, the Constitution Bench of the Indian Supreme Court (SCt) commenced hearings on marriage equality for queer individuals. A central question posed before the Court was whether queer individuals possess the fundamental right to marry as granted by the Indian Constitution. Unlike the IHRL, the Indian Constitution’s Fundamental Rights section does not explicitly address the right to marry. In response, the Petitioners drew upon IHRL principles, including international treaties such as the UDHR, ICCPR ICESC, and CRC.
Moreover, the Petitioners referenced decisions from international human rights courts such as the IACtHR and the ECtHR. They also looked at comparative constitutional interpretations of countries like the United States, the United Kingdom, and South Africa, among others. The primary objective of the Petitioners was to establish the recognition of marriage rights for the queer community through the framework of IHRL. They aimed to utilize the Indian Human Rights Act of 1993, defining ‘human rights’ as a universally upheld concept guaranteed by the Constitution and enshrined in international covenants, thereby making these rights enforceable by Indian courts.
The recognition of marriage rights for queer individuals in India and the extent to which the Indian Court will integrate IHRL are subjects of uncertainty. However, examining the historical trajectory of the Indian Court’s decisions becomes pivotal in determining the current possibilities. In the context of queer marriage rights, this examination underscores the emerging potential for the Indian Court to align with IHRL principles and incorporate Queer Legal theories, to enhance the fundamental rights of the queer community.
Illustratively, the Indian SCt has, in cases such as Navtej v UOI (2017), NALSA v. UOI (2014), Deepika v. CAT (2022), and X v. NCT (2022), significantly challenged conventional notions of gender identity and sexual rights through the lens of Queer theories. In NALSA v. UOI (2014), the Court articulated its argument for the legal recognition of transgender individuals on the principles outlined in the UDHR, ICCPR, ICESCR, CAT, and Yogyakarta principles. International Human Rights courts’ decisions, like Goodwin v. UK (2002) and Van v. Germany (2003), also provided the Court with a framework to understand the discrimination faced by transsexual individuals within society.
Moreover, the Court’s decisive move to decriminalize the notorious Section 377 heavily leaned on IHRL principles and Queer theory. This stance was supported by Elvia Arriola’s scholarship, which spotlighted the perpetuation of fixed gender roles as a promoter of cultural homophobia. By deconstructing binary gender constructs, the Court endorsed that construing gay relationships as abnormal merely upholds entrenched societal norms that challenge the diverse spectrum of sexual orientations. (Chandrachud, ¶ 44) References to the scholarly works of Zachary Kramer and Bennett Capers further emphasized the intricate links between sexual orientation, gender roles, and stereotypes, rendering the isolation of discrimination based on sex untenable.
Equally significant is the Court’s emphasis, citing Koppelman’s argument, on how the prohibition of homosexuality buttresses social hierarchies by reinforcing traditional gender norms. (Chandrachud, ¶ 46). By dismantling rigid gender roles and highlighting the socially constructed nature of normalcy, the Court’s stance against denying same-sex couples the right to marry underscores the perpetuation of discrimination and marginalization. It is furthermore an opportunity to invoke scholarships like Judith Butler and Michel Foucault to substantiate the interconnectedness of discrimination, stereotypes, and human rights violations. By paralleling the historical taboos surrounding interracial relationships with the denial of same-sex marriage, the Court can effectively draw attention to the continuance of societal hierarchies.
The Court’s ruling in Deepika v. CAT (2022) assumes considerable significance in the ongoing discourse on same-sex marriage. This ruling, which broadened the interpretation of “family relationships” within Indian society to encompass queer relationships, challenges conventional norms and aligns with queer theories. The Court’s decision not only acknowledges diverse family structures but also underscores the need to appreciate the intricate validity of Queer relationships. In turn, this contributes to advancing Queer rights and the momentum toward legalizing same-sex marriage. The ruling’s critique of heteronormativity and its emphasis on emotional connections over biological roles mark a progressive shift towards inclusivity.
Additionally, the Court’s stance in the case of X v. NCT (2022) wherein the definition of “women” was expanded to include individuals capable of giving birth, aligns with queer theories’ emphasis on transcending binary norms. This expansion provides a foundation for recognizing non-binary and transgender individuals’ rights within the sphere of marriage. Acknowledging the complexities of gender and reproductive capacities, as demonstrated by the Court’s move, affirms the perspective that identities and relationships are not bound by fixed categories. Applying this perspective to the legalization of queer marriage rights could lead to an argument that the institution of marriage should transcend traditional gender roles and reproductive expectations.
While the Indian Court’s approach to recognizing queer individuals’ marriage rights remains uncertain, its past rulings signal a willingness to engage with IHRL and Queer Legal theories to challenge societal norms and endorse inclusivity. The incorporation of international human rights norms and precedents underscores a broadened perspective and a commitment to addressing the discrimination faced by the queer community in India.
Part II:
In the previous part, the author delved into the intersection of International Law and Queer legal theories, examining the standpoint of Indian Courts. In this section, the author extends the analysis of this intersection to the perspective of Nepal’s Courts.
On May 02, 2023, the SCt of Nepal in Adhip Pokharel v. MoHA recognized the Queer individuals’ right to marry and directed the Law Ministry to either amend the existing law or introduce a new law allowing Queer individuals to exercise their right to marry. Phuyal J. of the SCt noted that the State has a mandatory obligation to protect the citizen’s fundamental rights. Phuyal J. referred to UDHR, and ICCPR to expand the Queer individual’s fundamental rights like equality, anti-discrimination, freedom, and the right to a family within the structure of the ‘right to marry’.
Firstly, the recognition of marriage rights for Queer individuals, as exemplified in Adhip Pokharel, showcases the Nepal Court’s willingness to embrace IHRL principles. The Court’s reference to international instruments like the UDHR and ICCPR highlights its reliance on globally accepted norms that endorse equality, non-discrimination, and the right to family life. This intersection is evident as the Court employs IHRL frameworks to expand the legal recognition of Queer individuals’ rights, effectively bridging international standards with domestic legal contexts. Secondly, these rulings exhibit a convergence between IHRL and Queer theories through their emphasis on dismantling traditional gender norms and hierarchies.
By recognizing that gender-neutral language and inclusivity are essential for upholding human rights and dignity, the Court aligns with Queer theories’ challenge to binary constructs. Furthermore, the Court’s references to Toonen v. Australia (UNHRC, 1994) demonstrate a bridge between IHRL and Queer theories. By relying on international jurisprudence that denounces the criminalization of same-sex relationships, the Court emphasizes the interconnectedness of human rights principles and the recognition of diverse sexual orientations. This acknowledgment parallels Queer theories’ advocacy for dismantling legal frameworks that perpetuate discrimination based on sexual orientation.
Earlier, the SCt of Nepal inSuman Panta v. MoHA (2017), recognized the Queer Marriage of a lesbian couple and granted a non-tourist visa to a foreign woman who was married to a Nepali woman. In this case, the Court had referred to ICCPR and ICESCR to observe that it is the State’s obligation ‘to protect, respect, and enjoy the rights outlined in the Convention to all persons within its State without distinction as to race, color, sex, language, religion, political or other opinions, national or social origin, property, birth or other status.’ By interpreting the term ‘other status’ within these covenants to encompass sexual orientation, the Nepal SCt parallels Queer theories’ emphasis on breaking free from binary gender norms and fostering a diverse understanding of human identities. The Court’s affirmation that an individual’s sexual orientation should not hinder their access to Covenant rights resonates with Queer theories’ pursuit of dismantling discriminatory barriers faced by the LGBTQ+ community.
Moreover, the endeavor to acknowledge the intersection of IHRL and Queer Theory as an intersectional approach to support Queer Marriage Rights can also be validated by the principle of Customary International Law (CIL) using the mechanisms of state practice and opinio juris doctrines. Numerous countries have acknowledged Queer marriage rights within the framework of IHRL. For example, many European countries such as the Netherlands, Norway, Portugal, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom have recognized the right to Queer Marriage. Similarly, countries in the Americas including the United States, Canada, Argentina, Chile, Mexico, and Colombia have also recognized Queer Marriage Rights. In Asia, Taiwan and Australia have also embraced the right to marriage for Queer individuals.
Moreover, backing for this intersection can also be derived from the judgments of international human rights courts on Queer Marriage Rights. These include the ECtHR ruling in the case of Schalk and Kopf v. Austria (2010), the CJEU ruling in the case of Coman v. General Inspectorate for Immigration (2018), and the IACtHR’s Advisory Opinion, in which it asserted that the American Convention on Human Rights necessitates and obligates the legal recognition of same-sex marriage. Thus, the growing acceptance of Queer Marriages by states across different regions including Third-World countries, and through various means strengthens the argument for recognizing Queer marriage rights under CIL.
IHRL, combined with Queer Legal Theory, provides a potent mechanism for South Asian courts to shape legal discourse and foster inclusivity. The emergence of Queer Legal Theory within the South Asian context instills a sense of reassurance within the queer community. While some critical theorists critique international law for perpetuating unequal power dynamics, it is crucial to establish an international legal framework that actively challenges and disrupts deeply rooted inequalities, rather than normalizing or exploiting them. Drawing inspiration from feminist approaches that have exposed the limitations and lack of intersectionality within global governance frameworks, a postcolonial queer curiosity can facilitate transformative changes within the international legal system. Drawing from a post-colonial perspective, the author suggests a departure from established methodologies like TWAIL (Third World Approaches to International Law) in the realm of queer international law.
While TWAIL effectively critiques the Western-centric nature of international law and its resultant disparities for marginalized nations, it is plausible that the author asserts that queer concerns are often marginalized even within the TWAIL discourse. The post-colonial approach to queer theory potentially underscores the importance of integrating queer perspectives into the discourse of international law, advocating for a more inclusive paradigm. This approach could necessitate a reexamination of existing legal frameworks to better address the specific challenges encountered by queer individuals and communities globally. Through the incorporation of this approach, the potential for transformative changes arises in how international law perceives, safeguards, and empowers queer rights.
Recent cases in India and Nepal illustrate the significant impact of the intersection of IHRL principles with Queer Legal Theory. This intersection is reshaping legal discussions by challenging traditional norms and advancing Queer rights. However, the question remains: Can this intersection of IHRL and queer legal theories lead to a fairer and more equitable global legal system? The recognition of queer marriage rights through international legal frameworks not only showcases the adaptability of law to changing social dynamics but also highlights the potential for transformative changes in the international legal landscape.
Author
Sarthak Gupta is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India (New Delhi). He completed his B.A.; and L.L.B (Hons.) from the Institute of Law, Nirma University, Ahmedabad, India.
