11.30am Queer Petition Final

IN THE HIGH COURT OF DELHI AT NEW DELHI
(EXTRAORDINARY CIVIL WRIT JURISDICTION)
WRIT PETITION (CIVIL) NO. _____ OF 2021
IN THE MATTER OF:
Mr. Joydeep Sengupta & Ors. …PETITIONERS
VERSUS
Union of India & Ors. …RESPONDENTS
INDEX
S. PARTICULARS PG.
NO. NO.
1. Notice of Motion 1-2
2. Urgent Application -3
3. Memo of Parties 4-5
4. Synopsis and List of Dates 6-20
5. Writ Petition under Article 226 of the

Constitution of India along with supporting 21-160
affidavit
6. Annexure P-1
A scanned true copy of the certificate of 161TO
registration of marriage along with apostille 162
certificate of the Petitioner Nos. 1 and 2.
7. Annexure P-2 163
True copies of photographs of the civil TO
ceremony of the marriage of the Petitioner Nos. 167
1 and 2 at the City Hall in New York City.
8. Annexure P-3
A scanned true copy of the passport of the -168
Petitioner No. 1.
9. Annexure P-4
A scanned true copy of the OCI card of the 169
Petitioner No. 1. TO
171
10. Annexure P-5
A scanned true copy of the passport of Petitioner -172
No. 2.
11. Annexure P-6 (COLLY)

Scanned true copies of the visas of Petitioner 173TO
No. 2. 178
12. Annexure P- 7(COLLY)

True copies of the MHA notifications dated 11th 179TO
April, 2005., 22.05.2020, 21.10.2020 and 190
04.03.2021
13. Annexure P-8

True copies of some of the published articles 191
written by the Petitioner No. 3 on issues faced TO
by the LGBTQIA+ community and their rights. 212
14. Annexure P-9

A true copy of the notification F. No.
26011/Misc./47/2019-OCI dated 15.11.2019 213
with Frequently Asked Questions (“FAQs”) and TO
answers to the same issued by the Ministry of 230
Home Affairs, Foreigners Division.
15. Annexure P-10 (COLLY) 231TO
st
True copies of the RTIs dated 1 March, 2021 248
filed by the Petitioner No. 3 on behalf of the
Petitioner Nos. 1 and 2.

True copies of the replies dated 10th March,
2021 issued by the MEA CPV Division and the
reply dated 16th March, 2021 issued by the
MHA, Foreigners Division to the RTI 249TO
Applications. 258

True copies of the replies dated 30th March, 259
2021 issued by the MHA, Foreigners Division TO
to the RTIs. 262
18. Annexure P-13(colly)

True copies of the replies dated 30th March, 263TO
2021 issued by the MHA, Foreigners Division 266
to the RTIs
19 ANNEXURE P-14
true copy of the reply dated 31st March, 2021 267
issued by the MEA, CPV Division to the RTI TO
Application 268
20 ANNEXURE P-15
True copy of The FAQs pertaining to eligibility 269TO
in applying for OCI available on the 277
website of the Ministry of External Affairs
21 C.M.A.NO. ____OF 2021

Application seeking
for exemption from
permission for filing lengthy 278
list of dates with affidavit TO
282
22 C.M.A.NO. _______OF 2021
Application for exemption from filing original/ 283TO
certified/ dim/ legible true type copies of the 287
annexures with affidavit
23 Vakalatnama 288TO
290
24 Court Fees 291
25 Proof of Service 292
PETITIONERS
THROUGH COUNSEL
Karuna Nundy
With Ruchira Goel, Utsav Mukherjee,
Ragini Nagpal and Abhay Chitravanshi
Advocates for the Petitioners
B-1/33A, Top Floor, Hauz Khas, New Delhi
karuna.nundy@gmail.com
+91-9818258357
Date:05.07.2021
Place: New Delhi
1
IN THE MATTER OF:
VERSUS
NOTICE OF MOTION
To,
The Registrar,
Delhi High Court
New Delhi.
Please take notice that the accompanying Writ Petition (Civil) under
Article 226 of the Constitution of India for issuance of appropriate
directions has been filed by the Counsel for the Petitioners in the High
Court of Delhi and the same is likely to be listed on 06.07.2021 before
the Hon’ble Court. Kindly find enclosed herewith a copy of the writ
petition. This is for your information. Thanking You.
Yours Faithfully,
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
2
To:
1. Union of India, Ministry of Home Affairs, Through Secretary
(served through standing counsel) Mr. Mohd. Muqeem.
Email Id: mohammedmuqeem@gmail.com
9999864964
2. Consulate General of India, New York, through Consul General.

Email Id: cg.newyork@mea.gov.in & mohammedmuqeem@gmail.com
Contact number: 212-774-0621 & 9999864964
3. Union of India, Ministry of External Affair, Consular Passport & Visa Division
(served through standing counsel) Mr. Mohd. Muqeem.
Email Id: mohammedmuqeem@gmail.com
9999864964
All parties have been served. Proof of Service has been annexed herewith.
3
IN THE MATTER OF:
VERSUS
URGENT APPLICATION
The Registrar,
Hon’ble High Court of Delhi
New Delhi
Kindly treat this application as an urgent one as per High Court Rules.
An application for urgent listing was filed by the Petitioners on
05.07.2021. The same was allowed by the Registrar for tentative listing
on 06.07.2021. (Reference No. 1625456370967_73482) It is prayed accordingly.
Yours Faithfully,
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
4
IN THE MATTER OF:
VERSUS
MEMO OF PARTIES
1. Mr. Joydeep Sengupta

R/o 8 rue Lallier, 75009 Paris, France Petitioner No. 1
2. Mr. Russell Blaine Stephens

R/o 8 rue Lallier, 75009 Paris France … Petitioner No.
2
3. Mr. Mario Leslie Dpenha
R/o 506 Maheshwar Niketan,

Kolbad Road, Thane – 400 601,
Maharashtra ... Petitioner No. 3
VERSUS
1. Union of India
Ministry of Home Affairs,
Through Secretary,
North Block, New Delhi- 110001 … Respondent No. 1
2. Consulate General of India, New York

Through the Consul General
East, 64th Street (between 5th &
Madison Avenue), NY-10065
Respondent No. 2
5
3 Union if India
Ministry of External Affairs,
Through its Secretary,
Consular, Passport and Visa Division,
Room No. 3, Patiala House Annex,
Tilak Marg, New Delhi- 110001 … Respondent
No. 3
ALL SERVED THROUGH THE STANDING COUNSEL (CIVIL)

DELHI HIGH COURT
NEW DELHI
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
6
SYNOPSIS
The present Petition seeks inter alia, a declaration that a spouse of

foreign origin of an Indian Citizen or Overseas Citizen of India (‘OCI’)
cardholder is entitled to apply for registration as an Overseas Citizen of
India under Section 7A(1)(d) of the Citizenship Act, 1955 regardless of
the gender, sex or sexual orientation of the applicant spouse . The
Petitioners also seek legal recognition of all same-sex, queer or non-
heterosexual marriages under secular legislations for marriage such as
the Foreign Marriage Act 1969 and the Special Marriage Act 1954 in
accordance .
Petitioner Nos. 1 and 2 in the present writ petition are a married same-
sex couple resident in Paris, France. They met in New York in 2001 and
have been in a loving relationship for nearly 20 years. Petitioners No. 1
and 2 got married in New York on August 6, 2012, and are recognized
as a legally married couple in the U.S., France, and Canada – the three
countries where they have primarily lived and worked in the last twenty
years. They have a certificate of registration of marriage issued by the
Office of the City Clerk of New York dated 6th August, 2012 and
apostille certificate of the same date issued by the Special Deputy
Secretary of State, New York.
Joydeep Sengupta and Blaine Stephens, Petitioners 1&2, are preparing

for their new role as parents, and they are expecting their first child in
July 2021.
The Petitioner No. 1, Joydeep Sengupta, was born in India and was an
Indian citizen at birth. He grew up knowing he was gay, and that his
right to love and marry was illegal. Education and work took Mr.
7
Sengupta abroad, he is now a lawyer admitted to the Bars of New York,
Paris and Ontario, Canada. He specializes in cross-border investigations,
compliance and regulatory matters for some of the world’s largest
financial institutions and global corporations. Mr. Sengupta is a
Canadian Citizen now and since 2011 he has been an Overseas Citizen
of India (“OCI”). Mr. Sengupta’s parents and extended family all live in
India, and he continues to maintain longstanding professional ties to
India. He travels to his Indian home regularly.
Blaine Stephens is Mr. Sengupta’s husband and Petitioner No. 2. He is

a U.S. citizen and currently a long term resident of France. The
Petitioner No. 2 has no legal status in India and has only been able to
visit India after qualifying for various temporary visitor or business
visas. The Petitioner No. 2’s first trip to India was to meet the Petitioner
No. 1’s extended family and friends in India in January 2002. Since then,
the Petitioner No. 2 has had multiple visas and has visited India many
times to see family and professionally. Petitioner No. 2 is an economist
who specializes in microfinance and economic development. He has
deep professional relationships with Indian business partners in
microfinance, which have included the Reserve Bank of India. Indeed,
he has worked as an advisor to the Central Banks of several countries,
development institutions and financial institutions, including through
the World Bank . He has also taught advanced courses at Columbia
University, Georgetown University, Yale University, Sciences Po Paris,
among others.
As the Petitioners are expecting their first child in July 2021, with one
set of the child’s grandparents residing in India (Petitioner No.1’s
parents), the Petitioner No.2 wishes to apply for OCI status under
8
Section 7A(1)(d) of the Citizenship Act, as a spouse of an OCI
Cardholder. As per the notification dated 22.05.2020 by the Ministry of
Home Affairs (‘MHA’), due to visa and travel restrictions imposed to
contain the spread of Covid 19, only certain categories of OCIs were
being allowed entry into India. However, later, MHA, Foreigners
Division, vide its notifications dated 21.10.2020 and 04.03.2021
reallowed entry of all OCIs in India and said that OCIs shall be entitled
to grant of multiple entry lifelong visa for visiting India for any purpose.
This facility is not available to foreign nationals. The Petitioner No. 2
seeks to attain OCI status at the earliest in order to avail of this facility
so that he can spend time in India – where the Petitioner no.1’s family
lives – with his spouse and the baby they are expecting. And indeed, to
reach his husband and baby immediately in case of illness or other
difficulty as needed during the pandemic .
Petitioner No.3, Mario Dpenha , is an Indian citizen, a queer rights

academic and activist, currently pursuing a PhD at Rutgers University,
USA on the history of hijras in eighteenth and early nineteenth century
western India. He has worked in queer activism for over twenty years
and is a founder of Anjuman, the first queer students’ collective in
Jawaharlal Nehru University, New Delhi in 2003. He was part of Voices
Against 377, a party to the legal challenge to Section 377 of the IPC,
which led to the eventual decriminalization of homosexuality in Navtej
Singh Johar v. Union of India (‘Navtej Singh Johar’) (2018) 10 SCC 1.
Petitioner No. 3 identifies as queer:
"Queer" in the present petition is used as an inclusive, umbrella term for

people who identify as Lesbian, Gay, Bisexual, Transgender, Queer,
Intersex, Asexual, and other related identities (LGBTQIA+).
9
Such people:
(i) may not conform to the fixed, socially prescribed categories of

“male” and “female”,
(ii) may have gender identities that do not match their biological sex at
birth,
and/or
(iii) may live outside the heterosexual norm.
OCI CARD FOR “SPOUSE” UNDER THE CITIZENSHIP ACT,

1955
Section 7A(1)(d) of the Citizenship Act, 1955 entitles a spouse of

foreign origin of an OCI Cardholder, whose marriage has been
registered and subsisting for at least two years to apply for OCI status.
As per a notification issued by the MHA, Foreigners Division, in the
case of a marriage solemnized in a foreign country, the spouse of an OCI
or Indian citizen applying for OCI may present the said marriage
certificate for such a marriage, which must be apostilled or certified by
the concerned Indian mission or post. The Petitioner No. 2, being the
spouse of an OCI cardholder, i.e. the Petitioner No. 1, is keen to apply
for OCI status through this procedure.
This prompted the Petitioner Nos. 1 and 2 to ascertain the legal position
on the eligibility of Petitioner No. 2 to apply for OCI status. Since they
aren’t citizens of India, they approached the Petitioner No.3, to file RTIs
on the issue. Petitioner No.3 filed three RTIs, one with the MHA itself,
10
one with the MHA Foreigners Division and one with the MEA,
Consular, Passport and Visa Division, all seeking the meaning of term
“registered” marriage in Section 7A(1)(d) and the list of countries whose
marriages are legally recognized by India. However, these RTIs were
transferred back and forth by the Ministries, as a result of which the
queries were never answered.
Further the Petitioner Nos. 1 and 2 came to know that there are a number
of petitions pending before this Hon’ble Court on the issue of legal
recognition of same sex marriages in India. One petition, available in the
public domain, titled Mr. Vaibhav Jain & Anr. Vs. Union of India &
Ors. W.P. (C) 7657 of 2020, pertains to the refusal by the Consulate
General of India, New York (also the Respondent No. 2 in the present
case), to register the marriage of a same sex couple under the Foreign
Marriage Act, 1969, even though the Petitioners in that case are already
legally married in the United States and have a valid marriage certificate,
like the Petitioners in the present case. The reason cited by the Consulate
General of India, New York for non-registration, as per the petition by
Mr. Vaibhav Jain and his husband, was that there are no extant laws and
provisions for registration of such a marriage (a same sex marriage) in
India.
The Respondent No. 2 is the concerned Indian mission/post which

granted the Petitioner No. 2’s last visa. It is also the Indian mission
which granted Petitioner No. 1 his OCI card, in addition New York is
the jurisdiction in which Petitioners 1 and 2 were married. Since the
Respondent No. 2 has already denied registration of a same-sex marriage
in Mr. Vaibhav Jain’s case, the Petitioner No. 2’ legitimately fears that
his application for OCI status as well as request for
11
certification/apostillization of the marriage certificate which will be
required in the application process, will not be accepted.
The Petitioners have thus approached this Hon’ble Court for relief.
Consensual sexual acts between persons of the same sex have already
been decriminalized by the Hon’ble Supreme Court of India in Navtej
Singh Johar. It is submitted that even though Indian law is silent on the
recognition of same sex marriages, it is a settled principle that where a
marriage has been solemnized in a foreign jurisdiction, the law to be
applied to such marriage or matrimonial disputes is the law of that
jurisdiction. Thus, a marriage like that of Petitioners Nos.1 and 2, being
validly registered under US law, must necessarily meet the requirements
of the term ‘registered’ under Section 7A(1)(d) of the Citizenship Act.
It is an equally settled principle of law that the Court cannot supply a

casus omissus into a statute by judicial interpretation, except in
circumstances of clear necessity, when the reasons for the same are
found within the four corners of the statute in question itself. It is
submitted that in the case of Section 7A(1)(d) of the Citizenship Act, all
that is required is that the marriage must be registered and subsisting for
2 years before the spouse can seek to apply for OCI status. There is no
requirement that the marriage must be in accordance with Indian law, or
that it must be registered under Indian law. In fact, all the Indian statutes
pertaining to registration of marriages, require either the marriage to be
performed in India (such as the Special marriage Act), or at least one
party to be a citizen of India (such as the Foreign Marriage Act). There
is no provision regarding registration of marriages between an OCI
(non-citizen) card holder and a foreigner. Yet Section 7A(1)(d) of the
Citizenship Act specifically allows for such a spouse of an OCI Card
12
holder to apply for OCI status in India provided the marriage is
registered and has subsisted for two years prior to the application. The
only other proviso to the same is that the spouse shall be subjected to
prior security clearance by a competent Authority in India.
In fact Section 7A(1)(d) was enacted in 2015, i.e. after the enactment of
the Foreign Marriage Act, Special Marriage Act, and other marriage
laws in India. Thus, it is submitted that the omission of any conditions
qua the gender/sex/sexuality of the parties in the marriage between the
OCI card holder and spouse of foreign origin is a casus omissus that
cannot be supplied by judicial interpretative process, and even a same
sex spouse of such an OCI Cardholder must be eligible to apply for OCI
status.
RECOGNITION OF SAME-SEX AND/ OR QUEER MARRIAGE

UNDER THE FOREIGN MARRIAGE ACT, 1969 AND THE
SPECIAL MARRIAGE ACT 1954
It is also well settled that where there’s a void in domestic law on an

issue, the courts may rely on international law and foreign judgments to
interpret the law in a manner that upholds and protects fundamental
rights. It is submitted that across most jurisdictions that place a premium
on the rights to equality, dignity, privacy and liberty, Courts have led the
way in ensuring legal recognition of same sex marriages. Further, it may
be noted that the starting point of such legal recognition, has been the
obligation as interpreted by the Courts, of a State to recognize/ license/
register same sex marriages performed and validly recognized in other
jurisdictions.
13
For instance, the US Supreme Court in Obergefell v. Hodges, Director,
Ohio Department of Health 576 U.S. 644 (2015) (‘Obergefell’), held
that the equal protection clause of the US Constitution, i.e. the 14 th
Amendment, would require a State to license a marriage between a
same-sex couple when the said marriage was lawfully performed and
licensed out of the State in question. Significantly, even though same
sex marriages were not technically recognized in Israel, the Israeli
Supreme Court in Yossi Ben-Ari v. Director of Population
Administration, Ministry of Interior, Interior [2006] (2) IsrLR 283
(‘Yossi Ben-Ari’), held that same sex marriages validly performed
between Israeli citizens abroad, must be registered by the registration
official at the population registry in Israel, who is not competent to
examine whether the said marriage conforms to Israeli law. It is
submitted that similarly, in the case of Section 7A(1)(d) of the
Citizenship Act, there is no power to examine whether the marriage in
question is in accordance with substantive Indian law or not – and as
long as the marriage is validly registered in the jurisdiction where it was
performed and the other conditions of the provision are met, the foreign
origin spouse is entitled to apply of OCI status.
The right to equality and equal protection of laws under Article 14 as

well as the right to life and personal liberty under Article 21 of the
Constitution of India are guaranteed to all persons, including foreigners.
The right to marry a person of one’s choice as an essential component
of the right to autonomy, privacy within Article 21 has been recognized
by a catena of judgments in India as well as by foreign courts.
Specifically, the right to legal recognition of same sex or non-
heterosexual marriages has also been upheld as a fundamental right in a
14
number of judgments by foreign courts, such as the Supreme Court of
the United States and the Constitutional Court of South Africa. As per a
catena of judgments, including those by the Hon’ble Supreme Court of
India in the cases of Navtej Singh Johar Vs. Union of India (2018) 10
SCC 1 and the judgment in Justice K.S.Puttaswamy vs. Union of India
(2017) 10 SCC 1, the Constitution is a transformative living document
that must adapt with changing times and the court must act as a
Constitutional invigilator to ensure social justice. These judgments, as
well as those by foreign courts prohibit the State from discriminating
against persons on the basis of gender or sexual orientation. It is
submitted that the right to legal recognition of marriage is the source for
various other rights and privileges. For example,
(i) spousal privilege under Section 122 of the Evidence Act, 1872
protects married couples from being compelled to disclose
communications between the spouses during the course of the marriage;
(ii) under the CCS (Pension) Rules, 1972 the spouse is entitled to a
family pension after the death of their spouse who was working as a civil
servant
(iii) the Pradhan Mantri Shram Yogi Maandhan Yojana, passed under
the Unorganized Workers’ Social Security Act, 2008 is a voluntary
pension scheme for unorganised workers that gives minimum assured
pension of Rs. 3000/- after a subscriber attains 60 years of age. The
scheme allows the spouse of the beneficiary to receive half the pension
as family pension if the beneficiary passes away.
(iv) Section 39(7) of the Insurance Laws (Amendment) Act, 2015,

accords nominees who are immediate family members such as spouse,
15
parents or children the status of beneficial nominee. If any of these
persons are made a nominee, the death benefit will be paid to these
persons and other legal heirs will have no claim over the money.
The right to OCI status of the Petitioner No. 2 is one such right.
Deprivation of the right to legal recognition of marriage hinders
members of the queer, LGBTQIA+ community from exercising these
other rights. In Navtej Singh Johar, the Hon’ble Supreme Court
acknowledged that history owes an apology to the LGBT community for
the tremendous suffering inflicted upon them.
Thus, it is most respectfully submitted that upholding the fundamental

right to legal recognition of marriage for the queer, LGBTQIA+
community would ensure that they are not only allowed peaceful
existence without interference by the State, but in furtherance of our
transformative constitution, it would bring the Petitioners and the queer
community closer to the rights of full personhood. It would thus be an
inclusive and progressive realisation of their rights, in line with the
landmark judgments by the Hon’ble Supreme Court of India in NALSA,
Navtej Singh Johar and Puttaswamy.
In the words of Petitioner No.3, Mr. Mario Leslie Dpenha:
“As a queer person, I have grown up in an India where — for the greater
part of my life — my sexuality was criminalized, my personhood was
shamed, my choices were circumscribed and my citizenship was
rendered second-class, because of Sec. 377. Being queer also made me
realize that there were others far worse off than me, who also faced
severe humiliation and daily violence because of their identities.
Growing up, I learned about and was deeply saddened by the story of
16
Leela Namdeo and Urmila Srivastava, two female police officers in
Madhya Pradesh. In 1987, they exchanged garlands and began living
together as spouses, an act that led to their dismissal from service. Their
yearning to live unhindered lives of respect led these women into conflict
with the laws and social conventions of their time. Their queerness, thus,
became the basis for their exclusion from the principle of “equal dignity
in the eyes of the law.
This equal dignity before the law — either as the decriminalization of

consensual sexual acts between adults, or the recognition of the
fundamental right of citizens to choose their own gender to love or
marry — has always been a cause close to my heart. There, however,
still remain significant impediments to achieving such equality of
dignity, especially in spheres related to intimate decisions involving
one’s choice of partner. I yearn for a day when that is no longer the
case, and every person of our country has the right to consensually
choose the spouse of their choice, and enjoy the rights guaranteed by
our Constitution”
05.07.2021 Hence the present petition.

17
LIST OF DATES AND EVENTS
Date Event
2001 The Petitioner Nos. 1 and 2 met in New York, fell in love and
entered into a relationship as a same sex couple.
January, 2002 The Petitioner No. 2 made his first trip to India, to meet with
the Petitioner No. 1’s extended family and friends. Since
then, the Petitioner No. 2 has had multiple business visas and
has visited India many times.
2005 The Petitioner No. 2’s first business visa issued for 1 year in
Washington, DC.
11th April, 2005 MHA, vide its notification No. 25022/17/05-F.I. allowed multi
entry, lifelong visa for journey to OCIs,
October, 2006 The Petitioner No. 2’s multi-year visa issued in Washington
DC for a five year period.
2011 The Petitioner No. 1, a Canadian citizen became an OCI

Cardholder.
April, 2012 The Petitioner No. 2’s second multi-year visa was issued in
New York.
6th August, 2012 The Petitioner No. 1 and 2 were married in New York. A
certificate of registration of marriage dated 6 th August, 2012
was issued to them by the Office of the City Clerk, New York,
and an apostille certificate of the same date was issued by the
Special Deputy Secretary of State, New York.
18
3rd September, The Supreme Court of India legalised the right to love and to
2018 a partner of choice by decriminalising consensual sexual acts
between adult persons of the same sex vide its judgment in
Navtej Singh Johar Vs. Union of India (2018) 10 SCC 1
15th November, The Ministry of Home Affairs, Foreigners Division released

2019 a notification F. No. 26011/Misc./47/2019-OCI dated
15.11.2019 with Frequently Asked Questions (“FAQs”) and
answers to the same by the Ministry.
22nd May, 2020 As per the notification dated 22.05.2020 by MHA, due to
visa and travel restrictions imposed to contain the spread of
Covid 19, only certain categories of OCIs were being
allowed entry into India.
8th October, This Hon’ble Court took up the petition of Mr. Vaibhav Jain
2020 & Anr. Vs. Union of India & Ors. W.P. (C) 7657 of 2020. A
number of other petitions seeking legal recognition of same
sex marriages under different Acts were also taken up by this
Hon’ble Court around this time.
21st October, The MHA had vide notification no. 25022/24/2020-F.V./F.I

2020 dated October 21, 2020 allowed, during the pandemic, entry
inter alia of OCI and PIO cardholders by water routes or
flights under bilateral travel arrangement schemes (e.g.
Vande Bharat) or non-scheduled commercial flights as
allowed by the Ministry of Civil Aviation. The MHA, then
by another notification No. 26011/Misc./83/2020-OCI on the
same date, i.e. October 21, 2020 re-allowed multiple entry
19
lifelong visa granted for any purpose in terms of the earlier
notification dated 11th April, 2005 issued by the MHA.
1st March, 2021 Petitioner No.3 filed RTIs with the MHA, MHA Foreigners
Division and the MEA, Consular, Passport and Visa (“CPV”)
Division to ascertain the legal position on the Petitioner No.
2’s (and others like him) eligibility to apply for OCI status.
4th March, 2021 The MHA, Foreigners Division, vide Notification F. No.
26011/CC/05/2018-OCI declared that OCIs shall be entitled to
grant of multiple entry lifelong visa for visiting India for any
purpose.
10th March, The MHA, Foreigners Division replied to the RTI by

2021 Petitioner No.3, Mr. Dpenha, transferring it to the MEA,
CPV Division.
16th March, The MEA, CPV Division replied to the RTI by Petitioner
2021 No.3, Mr. Dpenha, transferring it to the MHA, Foreigners
Division.
30th March, The MHA, Foreigners Division, reissued the same reply that
2021 it had on 16th March, 2021, a second time vide replies dated
30th March, 2021 to the RTI Application of Petitioner No.3,
Mr. Dpenha, including the one which was transferred to it by
the MEA, CPV Division.
31st March, The MEA, CPV Division transferred the RTI of Petitioner
2021 No.3, Mr. Dpenha that was sent back to it by the MHA
20
Foreigners Division, to the Legislative Department of the
Ministry of Law and Justice.
05.07.2021 HENCE THIS WRIT PETITION

21
IN THE MATTER OF:

Mr. Joydeep Sengupta & Ors. .... PETITIONERS
VERSUS
Union of India & Ors. … RESPONDENTS
WRIT PETITION UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDIA SEEKING INTER ALIA,
(I) A DECLARATION THAT SECTION 7A(1)(D) OF THE

CITIZENSHIP ACT, 1955 APPLIES TO SAME-SEX OR QUEER
SPOUSES AND;
(II) A DECLARATION THAT TO THE EXTENT THE FOREIGN

MARRIAGE ACT, 1969 EXCLUDES SAME-SEX MARRIAGES
OR QUEER MARRIAGES, IT VIOLATES ARTICLES 14, AND
21 OF THE CONSTITUTION OF INDIA AND;
(III) A DECLARATION THAT TO THE EXTENT THE SPECIAL
MARRIAGE ACT, 1954 EXCLUDES SAME-SEX MARRIAGES
OR QUEER MARRIAGES, IT VIOLATES ARTICLES 14, 15, 19
AND 21 OF THE CONSTITUTION OF INDIA AND;
(IV) A DECLARATION THAT THE RIGHT TO LEGAL
RECOGNITION OF A SAME SEX MARRIAGE OR QUEER
MARRIAGE IS A FUNDAMENTAL RIGHT UNDER ARTICLES
22
14, 15, 19 AND 21 IRRESPECTIVE OF A PERSON’S GENDER,
SEX OR SEXUAL ORIENTATION
MOST RESPECTFULLY SHOWETH:
1. The present Petition seeks inter alia, a declaration that a same-sex

or queer spouse of foreign origin of an Overseas Citizen of India
(‘OCI’) cardholder is entitled to apply for registration as an
Overseas Citizen of India under Section 7A(1)(d) of the
Citizenship Act, 1955, and the legal recognition of all same-sex
or non-heterosexual marriages under the applicable secular
statutes in India. The Petition is being filed by (i) a same sex
couple (Petitioners No. 1 and 2) married in New York, with
Petitioner No.1 being an Overseas Citizen of India, and Petitioner
No.2 being his American husband and (ii) Petitioner No.3, an
Indian citizen and queer rights activist. Through the present
Petition the parties seek marriage equality as an essential part of
the fundamental rights to equality, life and freedom to love and
commit to one’s person of choice.
2. The Respondent No. 1 is the Union of India through the Ministry
of Home Affairs. The Foreigners Division of the Respondent No.
1 is the nodal authority re: Overseas Citizenship of India. The
Respondent No. 2 is the Consulate General of India, New York,
and is the concerned Indian mission/post which granted the
Petitioner No. 2’s last visa. It is also the Indian mission which
granted Petitioner No. 1 his OCI card. It is the authority which
can grant OCI status to the Petitioner No. 2. The Respondent No.
3 is the Union of India through the Ministry of External Affairs,
23
Consular, Passports and Visa Division which is the authority that
holds charge over the consulates and embassies of the
Government of India across the world including the Consulate
General of India, New York, USA.
3. FACTS:
(i) The Petitioner Nos. 1 (Indian born Canadian citizen and

OCI card holder) and 2 (American citizen) are a married
same-sex couple resident in Paris, France. The Petitioner
Nos. 1 and 2 met and fell in love in New York in 2001 and
have been in a loving relationship for nearly 20 years. The
Petitioner Nos. 1 and 2 got married in New York on August
6, 2012. The Petitioner Nos. 1 and 2 are recognized as a
legally married couple in the U.S., France, and Canada –
the three countries where they have primarily lived and
worked in the last twenty years. A certificate of registration
of marriage dated 6th August, 2012 was issued to them by
the Office of the City Clerk, New York, and an apostille
certificate of the same date was issued by the Special
Deputy Secretary of State, New York. The Petitioner Nos.
1 and 2 also had a civil ceremony of their marriage at the
City Hall in New York City. A scanned true copy of the
certificate of registration of marriage along with apostille
certificate of the Petitioner Nos. 1 and 2 is annexed
herewith as Annexure P-1 (Colly). True copies of
photographs of the civil ceremony of the marriage of the
24
Petitioner Nos. 1 and 2 at the City Hall in New York City
are annexed herewith as Annexure P-2 (Colly).
(ii) The Petitioner No. 1 is a Canadian citizen and an Overseas

Citizen of India (“OCI”). He was an Indian citizen at birth
and he grew up knowing he was gay, and that his right to
love and marry was illegal. Education and work took
Petitioner No. 1 abroad. He became an OCI cardholder in
2011. The Petitioner No. 1 is currently a resident of France.
In addition to India, he has lived in multiple countries,
including Canada, the United States, Spain, and France.
Petitioner No. 1’s parents and extended family all live in
India. He continues to maintain longstanding family and
professional ties to India, and has visited his Indian home
regularly as an OCI holder since 2011. A scanned true copy
of extract of the passport of the Petitioner No. 1 is annexed
herewith as Annexure P-3. A scanned true copy of the OCI
card of the Petitioner No. 1 is annexed herewith as
Annexure P-4.
The Petitioner No. 1 is a lawyer admitted to the Bars of New York,

Paris and Ontario, Canada. He specializes in cross-border
investigations, compliance and regulatory matters for some of the
world’s largest financial institutions and global corporations. He has
worked for two of the world’s largest law firms in New York,
Washington DC and Paris, as well as the Organisation for Economic
Cooperation and Development (OECD) in Paris, and the Court of
Appeal for Ontario in Toronto. He also serves as a member of the
25
Corporate Social Responsibility committee of the American
Chamber of Commerce in Paris, a member of the board of advisors
of a French Legaltech, and a member of the Board of Directors of
United World Colleges France, a non-profit organization promoting
educational exchange.
(iii) The Petitioner No. 2 is Petitioner No. 1’s husband. He is a

U.S. citizen, and a long-term resident of France. The
Petitioner No. 2 has no legal status in India and has only
been able to visit India after qualifying for various
temporary visitor or business visas. The Petitioner No. 2’s
first trip to India was to meet with the Petitioner No. 1’s
extended family and friends in India in January 2002. Since
then, the Petitioner No. 2 has also fostered professional ties
in India, and has had multiple business visas and has visited
India many times. His first business visa was issued in
2005, in Washington, DC. His first multi-year visa was
issued October 2006, in Washington DC for 5 years. His
second multi-year visa was from April 2012, issued in New
York. In the last few years, the Petitioner No. 2 has used
online e-visas for multiple professional and family visits to
India. He has had long term professional relationships with
business partners in the microfinance field, which have
included financial institutions, the Indian government and
non-governmental organizations. Indeed if the Petitioner
No. 2’s application for OCI status is rejected, he reasonably
apprehends being caused serious prejudice to his
professional work and family obligations through rejection
26
of visas. This, at a time he is expecting a baby in July 2021
and will need to spend time in India with family and reach
them at short notice if required.
A scanned true copy of the passport of Petitioner No. 2 is

annexed herewith as Annexure P-5. Scanned true copies
of the Visas of the Petitioner No. 2 are annexed herewith as
Annexure P-6 (Colly).
(iv) The Petitioner No. 2 is an economist who specializes in

microfinance and economic development. He has worked
as an advisor to the Central Banks of several countries,
development institutions and financial institutions both in
his personal capacity as well as through his prior
professional engagements as the Chief Operating Officer of
Microfinance Information Exchange, a project initially
developed at the World Bank in Washington DC. The
Petitioner No. 2 has worked as an expert consultant in
countries around the world. He has also taught advanced
courses at Columbia University, Georgetown University,
Yale University, Sciences Po Paris, among others.
(v) As such both Petitioners No.1 and 2 have longstanding

relationships and connections in India. They are expecting
a baby, their first child in July 2021 and would like their
child to have regular relationship with his grandparents,
one set of which (Petitioner No.1’s parents), reside in India,
for which they wish to apply for OCI status for Petitioner
No.2 under Section 7A(1)(d) of the Indian Citizenship Act.
27
(vi) As per the notification dated 22.05.2020 issued by MHA,

visa and travel restrictions were imposed to contain the
spread of Covid 19, and only certain categories of OCIs
were being allowed entry into India.
(vii) However, later, the MHA vide notification no.

25022/24/2020-F.V./F.I dated October 21, 2020 re-allowed
entry of all OCI and PIO cardholders holding passports of
any country as well as foreign nationals intending to visit
India for any purpose (except those on tourist visas) by
water routes or flights under bilateral travel arrangement
schemes (e.g. Vande Bharat) or non-scheduled commercial
flights as allowed by the Ministry of Civil Aviation. On the
same date, the MHA, vide notification No.
26011/Misc./83/2020-OCI re-allowed multiple entry
lifelong visa granted for any purpose in terms of the earlier
notification dated 11th April, 2005. Thereafter, the MHA,
Foreigners Division, vide Notification F. No.
26011/CC/05/2018-OCI dated 4th March, 2021 reiterated
that OCIs shall be entitled to grant of multiple entry lifelong
visa for visiting India for any purpose.
True copies of the MHA notifications dated 11 th April, 2005,
22.05.2020, 21.10.2020 and 04.03.2021 are annexed herewith as
Annexure P-7 (COLLY)
(viii) Hence, the Petitioner No. 2, can at this time, get a multiple
entry lifelong visa for visiting India for any purpose only
28
by attaining OCI status. The Petitioner No. 2 requires this
facility at the earliest so that he is able to travel freely to
India where the Petitioner no.1’s family lives – and is able
to spend time with them with his spouse and the baby they
are expecting
(ix) The Petitioner No. 3, Mr. Mario Dpenha, is an Indian

citizen and queer rights activist. In his own words:
“I, Mario Leslie Dpenha, am an Indian citizen and
proud queer man, passionate about our country, its
history, and its Constitution. I am a PhD candidate
at Rutgers University, NJ, USA, writing a
dissertation on the history of hijras in eighteenth and
early nineteenth century western India. I have
worked in queer activism for over twenty years. I co-
founded Anjuman, the first queer students’ collective
in Jawaharlal Nehru University, New Delhi in 2003.
I was part of Voices Against 377, a coalition of
NGOs and progressive groups which was party to
the challenge to Sec. 377 in the Delhi High Court
and Supreme Court. I am also a Fellow of the All
India Professionals Congress, a department of the
Indian National Congress. I lead its Committee for
LGBTQIA+ Affairs in Maharashtra.
As a queer person, I have grown up in an India where

— for the greater part of my life — my sexuality was
criminalized, my personhood was shamed, my
choices were circumscribed and my citizenship was
29
rendered second-class, because of Sec. 377. Being
queer also made me realize that there were others
far worse off than me, who also faced severe
humiliation and daily violence because of their
identities. Growing up, I read about and was
saddened by the story of Leela Namdeo and Urmila
Srivastava, two female police officers in Madhya
Pradesh. In 1987, they exchanged garlands and
began living together as spouses, an act that led to
their dismissal from service. Their yearning to live
unhindered lives of respect led these women into
conflict with the laws and social conventions of their
time. Their queerness, thus, became the basis for
their exclusion from the principle of “equal dignity
in the eyes of the law.”
This equal dignity before the law — either as the

decriminalization of consensual sexual acts between
adults, or the recognition of the fundamental right of
citizens to choose their own gender — has always
been a cause close to my heart. There, however, still
remain significant impediments to achieving such
equality of dignity, especially in spheres related to
intimate decisions involving one’s choice of partner.
I yearn for a day when that is no longer the case, and
every person has the right to consensually choose
the spouse of their choice, and enjoy the rights
guaranteed by our Constitution”
30
(x) Petitioner No. 3 identifies as queer: “Queer” in the present
petition, is used as an inclusive, umbrella term for Lesbian,
Gay, Bisexual, Transgender, Intersex, Genderqueer,
Asexual, and other persons who do not conform to the
binary categories of “male” and “female”, whose gender
identity may not match their sex assigned at birth, and/or
those who live outside the heterosexual norm prescribed by
society.
(xi) Various articles written by the Petitioner No. 3 on the issues

faced by the LGBTQIA+ community and their rights have
been published. True copies of some of the published
articles written by the Petitioner No. 3 on issues faced by
the LGBTQIA+ community and their rights are annexed
herewith as Annexure P-8(Colly).
(xii) The genesis of the present Petition lies in the Petitioner No.
2’s desire to seek OCI status as the spouse of an OCI Card
holder, in accordance with Section 7A(1)(d) of the
Citizenship Act which reads as follows:
“7A. Registration of Overseas Citizen of India

Cardholder.―
(1) The Central Government may, subject to such

conditions, restrictions and manner as may be
prescribed, on an application made in this behalf,
31
register as an Overseas Citizen of India
Cardholder―
…
(d) spouse of foreign origin of a citizen of India or
spouse of foreign origin of an Overseas Citizen of
India Cardholder registered under section 7A and
whose marriage has been registered and subsisted
for a continuous period of not less than two years
immediately preceding the presentation of the
application under this section:
Provided that for the eligibility for registration as an

Overseas Citizen of India Cardholder, such spouse
shall be subjected to prior security clearance by a
competent authority in India:
Provided further that no person, who or either of

whose parents or grandparents or great
grandparents is or had been a citizen of Pakistan,
Bangladesh or such other country as the Central
Government may, by notification in the Official
Gazette, specify, shall be eligible for registration as
an Overseas Citizen of India Cardholder under this
sub-section”
A true copy of the Citizenship Act, 1955 is annexed

herewith and marked as “Annexure P- 9 ”.
32
(xiii) The MHA, Foreigners Division has issued a notification
with FAQs pertaining to OCI registration. At page 5, in
Clause (7) of the answer to Question 7, the Ministry has
laid down the evidence to be given by a spouse of foreign
origin of an OCI Cardholder, while applying for OCI,
namely, that the spouse must provide a registered marriage
certificate. It further notes the guidelines that are applicable
to the marriage certificate being submitted. If the marriage
is solemnized in India, the marriage certificate issued by
the Marriage Registrar is required; if the marriage is
solemnized in a foreign country, it should be apostilled/
certified by the concerned Indian mission or post. A true
copy of relevant extracts of the notification F. No.
26011/Misc./47/2019-OCI dated 15.11.2019 with
Frequently Asked Questions (“FAQs”) and answers to the
same issued by the Ministry of Home Affairs, Foreigners
Division is annexed herewith as Annexure P-10.
(xiv) Before applying for OCI status, the Petitioner Nos. 1 and 2
came to know of various petitions pending before this
Hon’ble Court and other courts on the issue of legal
recognition of same sex marriages in India. One of the
petitions, which was available in the public domain, Mr.
Vaibhav Jain & Anr. Vs. Union of India & Ors. W.P. (C)
7657 of 2020, first taken up by this Hon’ble Court on 8th
October, 2020 pertains to a refusal by the Consulate
General of India, New York (also the Respondent No. 2 in
the present case) to register the marriage of a same sex
couple under the Foreign Marriage Act, 1969, even though
33
the Petitioners in that case were already legally married in
the United States and had a valid marriage certificate. The
reason cited by the Respondent No. 2 for non-registration,
as per the petition by Mr. Vaibhav Jain and his partner was
that there are no extant laws and provisions for registration
of such a marriage (a same sex marriage) in India.
(xv) It is submitted that the Foreign Marriage Act, 1969 applies

only to marriages where at least one of the parties is an
Indian citizen. Hence, it does not apply to the marriage of
the Petitioner Nos. 1 and 2. As per the MHA, Foreigners
Division, a registered marriage certificate of a marriage
solemnized in a foreign country is on its own sufficient to
enable an OCI cardholder’s spouse of foreign origin to
apply for OCI status, as long as the Indian mission/post
certifies/apostles the marriage certificate. Without
prejudice to the same, it is pertinent to note that Section 23
of the Foreign Marriage Act, 1969 provides that the Central
government may declare, vide notification in the official
gazette that the marriages solemnized under the law in
force in a foreign country shall be recognized by courts in
India as valid if the law in such a foreign country contains
provisions similar to those contained in the Foreign
Marriage Act, 1969.
(xvi) In order to ascertain the legal position on the issue of

eligibility of the Petitioner No. 2 to apply for OCI, the
Petitioner Nos. 1 and 2 contemplated filing RTIs. Since
34
neither of them is an Indian citizen, they approached the
Petitioner No. 3, a citizen of India, to file the RTIs on their
behalf. Thus Petitioner No.3 filed three RTIs dated 1 st
March, 2021. One RTI was filed with the Ministry of Home
Affairs (“MHA”), one with the Ministry of Home Affairs,
Foreigners Division and one with the Ministry of External
Affairs (“MEA”), Consular Passport and Visa (“CPV”)
Division. RTIs were filed with the MHA and MHA
Foreigners Division since they are the nodal authorities for
OCI. An RTI was also filed with the MEA CPV Division
as the “Guide to Consular Services” available on the
website of Ministry of External Affairs states that the CPV
division of the MEA can assist OCI Cardholders under
special circumstances. True copies of the RTIs dated 1 st
March, 2021 filed by the Petitioner No. 3 on behalf of the
Petitioner Nos. 1 and 2 are annexed herewith as Annexure
P-11 (Colly).
(xvii) The Information sought was common in all three RTIs,

which was as follows
“4. Information Sought :
(1) A spouse of foreign origin of an OCI card Holder
is qualified to apply for an OCI card under
Clause (d) of Section 7A of the Citizenship Act,
1955 if the marriage has been registered and has
subsisted for a continuous period of at least two
years preceding the presentation of the
application. I request you to provide information
35
on what is meant by ‘registered’ under Section
7A(d) of the Citizenship Act, i.e:
(i) Whether the marriage between the OCI
card holder and spouse of foreign origin
must be validly registered under the law in
force of the country where the marriage
was solemnized? or
(ii) Whether the marriage between the OCI
must be registered under Section 4 or
Section 17 of the Foreign Marriage Act,
1969? (Prima facie, marriages under the
Foreign Marriage Act appear to require
atleast one party to be an Indian citizen,
and I seek information on a fact situation
where one party is an OCI Card Holder
and the other is a foreigner); or
(iii) Whether the marriage between the OCI
must be registered under any other law for
the time being in force in India, and if so,
which law?
…
(2) Under Section 23 of the Foreign Marriage Act,
the Central Government is empowered to
declare that marriages solemnized under the law
in force in a particular foreign country as a valid
marriage in India if it is satisfied that the law in
36
the said foreign country contains provisions
similar to those contained in the Foreign
Marriage Act. In this regard, I request you to
provide information on whether the Central
Government has declared the marriage laws of
any such foreign country as valid under Indian
law under Section 23? If so, which foreign
countries’ marriages laws and marriages
solemnized thereunder, have been recognized as
valid under Indian law?”
(xviii) The MEA, CPV Division issued a reply dated 10th March,
2021 to the RTI filed with it, stating that the RTI
application was being transferred to the MHA since the
subject matter pertained to the MHA. In this regard, the
reply stated,
“The RTI application is being transferred to Ministry of Home
Affairs under Section 6 (3) (ii) of the RTI Act, 2005 as the subject
matter pertains to them. You are requested to contact MHA for
further correspondence in the matter.”
Thereafter, the MHA, Foreigners Division issued a reply dated
16th March, 2021 stating:
“2. For the information sought in Point No. 1, it is
intimated that Information sought by you is in the
form of query/ seeking opinion, clarification and
hence it does not constitute information as defined
in section 2(f) of the RTI Act, 2005. However, you
37
may refer to the OCI cardholder brochure, which
may be accessed through the website link:
https.//www.
mha.gov.in/sites/default/files//Brochure_OCI_151120 19.pdf.
3. For the information sought in Point No. 2, it is intimated that
the information sought closely relates to the Ministry of External
Affairs. Therefore, it is being transferred to Ministry of External
Affairs under Section 6(3) of the RTI Act, 2005.
True copies of the reply dated 10th March, 2021 issued by the MEA CPV
Division and the reply dated 16th March, 2021 issued by the MHA
Foreigners Division to the RTI Applications are annexed herewith as
Annexure P-12(Colly).
xix. Thereafter, the Petitioner No. 3 received two responses from

the MHA, Foreigners Division, both dated 30th March 2021. It
appears that one of the replies from the MHA, Foreigners
division was in response to Petitioner No. 3’s RTI application
addressed to it, while the other was a response to the RTI
application transferred to the MHA, Foreigners Division from
the MEA. The content of both these responses was identical.
The RTI responses dated 30th March 2021 from the MHA,
Foreigners Division stated,
“2. For the information sought in Point No. 1, it is intimated that
Information sought by you is in the form of query/ seeking opinion,
clarification and hence it does not constitute information as defined in
38
section 2(f) of the RTI Act, 2005. However, you may refer to the OCI
cardholder brochure, which may be accessed through the website link:
https://www.mha.gov.
in/sites/default/files/Brochure_OCI_15112019.pdf.
3. For the information sought in Point No. 2, it is intimated that the
information sought closely relates to the Ministry of External Affairs.
Therefore, it is being transferred to Ministry of External Affairs under
Section 6(3) of the RTI Act, 2005.”
True copies of the replies dated 30th March, 2021 issued by the MHA,
Foreigners Division to the RTIs are annexed herewith as Annexure P-
13 (Colly).
xx. The Petitioner No. 3 received a reply dated 31 st March, 2021

from the MEA, CPV Division, in response to the RTI
applications that had been re-transferred to the MEA from the
MHA, Foreigners Division. The said reply dated
31.03.2021stated that the information sought was not available
with it and transferred the RTI to the Legislative Department
of the Ministry of Law and Justice.
A true copy of the reply dated 31st March, 2021 issued by the
MEA, CPV Division to the RTI Application is annexed herewith
as Annexure P-14
xxi. Therefore, no effective response has been received to the

Petitioners’ queries – and the Ministries kept transferring the
RTIs back and forth. The answers to the queries in the RTI are
39
also not available in the brochure on OCI available on the
MHA website that the MHA, Foreigners Division has asked
Petitioner No.3 to refer to in its replies to his RTI.
xxii. The Respondent No. 2 is the authority which issues visas to
the Petitioner No. 2 in the present petition. The Respondent
No. 2 has already categorically refused to register a same sex
marriage in Mr. Vaibhav Jain’s case on the ground that there
are no extant laws and provisions pertaining to such a marriage
in India. The law in India is silent on the legal recognition of
same sex marriages, and a number of petitions on the issue are
pending before this Hon’ble Court itself and before other
courts in India. Therefore, if the Petitioner No. 2 applies to
the Respondent No. 2 for OCI as Petitioner No. 1’s spouse,
under Section 7A(1)(d) of the Citizenship Act, 1955, he fears
rejection of the same. The Respondent No. 2 may also refuse
to apostle/certify the registered marriage certificate of the
Petitioner Nos. 1 and 2, as was done in the case of Mr. Vaibhav
Jain. Rejection of the application for OCI status may further
create problems for issuance of visas to him by Respondent
No. 2 in the future.
4. Thus, the Petitioners Nos. 1 and 2 have no other choice but to

approach this Hon’ble Court for relief. Petitioner No. 3 seeks the
said reliefs as a proud queer rights activist deeply embedded in
the movement to secure equal rights and personhood for all
LGBTQIA+ persons in India. The reliefs sought by the present
petition from this Hon’ble Court would not only be in the interest
of the Petitioner Nos. 1 and 2 by rendering the Petitioner No. 2
40
officially eligible to apply for OCI, they would also ensure the
protection of the fundamental right of marriage within the ambit
of Article 21 of the Constitution of India, to LGBTQIA+ persons
and would secure various other rights stemming from a legally
recognized marriage for them. Not granting these rights to same
sex or non-heterosexual couples, which are otherwise available to
heterosexual couples is discriminatory. The terms same-sex
marriage or non-heterosexual marriages used throughout this
Petition are meant to be analogous to each other and include any
marriage between two persons of the same sex, two transgender
persons, between a man and a transgender person or between a
woman and a transgender person (“transgender” here refers to the
term granted legal recognition by the NALSA judgment, which
includes non-binary persons, intersex persons etc.) Thus, this
Petition is also in public interest.
5. GROUNDS:
SECTION 7A(1)(d) OF THE CITIZENSHIP ACT , 1955 MAKES

ALL FOREIGNER SPOUSES OF OCI CARDHOLDERS
ELIGIBLE FOR OCI CARDS
A. Because the Citizenship Act, 1955 does not specify that only
heterosexual spouses of different sex and gender will be eligible
for OCI cards under Section 7A(1)(d):
7A. Registration of Overseas Citizen of India

Cardholder.―
41
(1) The Central Government may, subject to such conditions,
restrictions and manner as may be prescribed, on an application
made in this behalf, register as an Overseas Citizen of India
Cardholder―
.....
(d) spouse of foreign origin of a citizen of India or spouse of

foreign origin of an Overseas Citizen of India Cardholder
registered under section 7A and whose marriage has been
registered and subsisted for a continuous period of not less than
two years immediately preceding the presentation of the
application under this section:
Provided that for the eligibility for registration as an Overseas

Citizen of India Cardholder, such spouse shall be subjected to
prior security clearance by a competent authority in India:
Provided further that no person, who or either of whose parents

or grandparents or great grandparents is or had been a citizen of
Pakistan, Bangladesh or such other country as the Central
Government may, by notification in the Official Gazette, specify,
shall be eligible for registration as an Overseas Citizen of India
Cardholder under this sub-section.
B. Because it is a settled principle of law that the Court cannot supply

a casus omissus into a statute by judicial interpretation, except in
circumstances of clear necessity, when the reasons for the same
are found within the four corners of the statute in question itself.
It is submitted that in the case of Section 7A(1)(d) of the
Citizenship Act, all that is required is that the marriage must be
42
registered and subsisting for 2 years before the spouse can seek to
apply for OCI status. There is no requirement that the marriage
must be in accordance with substantive Indian law, or that it must
be registered under Indian law. In fact, all the Indian statutes
pertaining to registration of marriages, require either the marriage
to be performed in India (such as the Special marriage Act), or
atleast one party to be a citizen of India (such as the Foreign
Marriage Act). There is no provision regarding registration of
marriages between an OCI (non-citizen) card holder and a
foreigner. Yet Section 7A(1)(d) of the Citizenship Act
specifically allows for such a spouse of an OCI Card holder to
apply for OCI status in India provided the marriage is registered
and has subsisted for two years prior to the application. The only
other proviso to the same is that the spouse shall be subjected to
prior security clearance by a competent Authority in India.
Section 7A(1)(d) was enacted in 2015, i.e. after the enactment of
the Foreign Marriage Act, Special Marriage Act, and other
marriage laws in India. Thus, it is submitted that the omission of
any conditions qua the gender/sex/sexuality of the parties in the
marriage between the OCI card holder and spouse of foreign
origin is a casus omissus that cannot be supplied by judicial
interpretative process, and even a same sex spouse of such an OCI
Cardholder must be eligible to apply for OCI status.
C. Because the Foreign Marriage Act (‘FMA’) applies to marriages
of Indian citizens outside India, and does not apply to OCI card
holders (like the Petitioner No.1 herein) marrying foreigners (like
the Petitioner No.2) abroad. The FMA distinguishes between
spouses on the basis of their gender. Chapter 2 concerns
43
solemnization of foreign marriages – Section 4 pertains to the
solemnisation of a marriage by an Indian citizen before a
Marriage Officer, where registration is sought at the first instance.
One of the conditions for such marriages, under Section 4(1)(c)
specifically requires the parties to be a ‘bride’ and a
‘bridegroom’, i.e., to be female and male.
D. Because Section 17 of the FMA (Foreign Marriage Act) pertains
to marriages duly solemnized in a foreign country in accordance
with the law of that country between parties of whom at least one
was a citizen of India (Section 17(1)(a)). Under Section 17, such
parties can seek to have their marriage registered by the Marriage
Officer. It is explicit however, as stated in section 17(2), that "No
marriage shall be registered under the section unless at the time
of registration it satisfies the conditions mentioned in section 4."
E. F. Because FMA hence unconstitutionally mandates that the parties

to a foreign marriage , one of them is an Indian citizen, must be
(i) Male and female, and hence of binary gender and
(ii) Heterosexual
F. G. Because the Hon’ble Supreme Court in NALSA has held that there
is a positive judicial obligation to further the rights of "non-
binary" genders and indeed all genders, and the FMA militates
against the same.
G. H. Because the FAQs pertaining to eligibility in applying for OCI

available on the website of the Ministry of External Affairs
(“MEA”) and the answers to them do not bar a spouse of an OCI
44
cardholder who is applying for OCI on the basis of gender, sex or

sexuality. The relevant FAQs and the answers to them given by
the MEA are as follows:
“4. Can the spouse of the eligible person apply for OCI?
Ans. Yes, if he/she is eligible in his/her own capacity.
6. In what form should a person apply for an OCI and where are
the forms available?
Ans. A family consisting of spouses and upto two minor children

can apply in the same form i.e. Form XIX, which can filed online
or downloaded from our website
http://mha.nic.in/ForeigDiv/ForeigHome.html.”
True copy of The FAQs pertaining to eligibility in applying for

OCI available on the website of the Ministry of External Affairs
(“MEA”) and the answers to them are annexed herewith as
Annexure P-15.
H. I. This Hon’ble court in order dated 10.04.2020 in Vaibhav Jain v.

Union of India, held that in its prima facie view, the provisions of
the Special Marriage Act, 1954 distinguish in terms of gender
identity and sexual orientation. They found that the provisions
relating to solemnisation of marriage and degrees of prohibited
relationships in the Special Marriage Act, 1954 referenced males
and females. This is under Section 2(b), Schedule I and Section
4(c). Sections 12, 15, 22, 23, 25 and 27 also use the terms
“husband” and “wife” when providing for the solemnisation,
registration and nullity of marriage. Section 27(1)(1A) and 31
provide special conditions for the “wife” while Sections 36 and
45
37 only provide for alimony to be given to a “wife” by a
“husband”. Section 44 which provides for punishment for bigamy
uses the words “wife” and “husband”. Schedules I, II, III, IV and
V refer to, “widow”, “widower” “bride”, “bridegroom”,
“husband” and “wife”. In the context of the Foreign Marriage
Act, 1969 the division bench observed that “bride” and
“bridegroom” in their prima facie view referred to women and
men. This, if applied to the provisions of the Special Marriage
Act, 1954 would also restrict the applicability of this act to just
males and females. Petitioner No. 3 in the present petition, who
identifies as queer will not be able to register their marriage under
the Special Marriage Act, 1954 which restricts its applicability
only to heterosexual marriages.
I. J. Because it is also well settled that where there’s a void in domestic

law on an issue, the courts may rely on international law and
foreign judgments to interpret the law in a manner that upholds
and protects fundamental rights. It is submitted that across most
jurisdictions that place a premium on the rights to equality,
dignity, privacy and liberty, Courts have led the way in ensuring
legal recognition of same sex marriages.
“WHOSE MARRIAGE HAS BEEN REGISTERED”: A

MARRIAGE SOLEMNIZED AND REGISTERED IN A
FOREIGN JURISDICTION IS ENTITLED TO BE LEGALLY
RECOGNIZED IN INDIA :
46
J. K. Because it may be noted that the starting point of such legal
recognition, has been the obligation as interpreted by the Courts,
of a State to recognize/ license/ register same sex marriages
performed and validly recognized in other jurisdictions. For
instance, the US Supreme Court in Obergefell v. Hodges,
Director, Ohio Department of Health 576 U.S. 644 (2015)
(‘Obergefell’), held that the equal protection clause of the US
Constitution, i.e. the 14th Amendment, would require a State to
license a marriage between a same-sex couple when the said
marriage was lawfully performed and licensed out of that State.
K. L. Because even though same sex marriages were not technically
recognized in Israel, the Israeli Supreme Court in Yossi Ben-Ari

v. Director of Population Administration, Ministry of Interior,
[2006] (2) IsrLR 283 (‘Yossi Ben-Ari’), held that same sex
marriages validly performed between Israeli citizens abroad, must
be registered by the registration official at the population registry
in Israel, who is not competent to examine whether the said
marriage conforms to Israeli law. The petitioners in this case were
five queer couples, all Israeli citizens who got married in Canada
in accordance with Canadian law. Upon returning to Israel, they
applied to the population registry to be registered as married.
Their application was refused. They petitioned the court. The
court allowed the petition and held that the purpose of the registry
is merely statistical and that the registration official at the
population registry is not competent to examine the validity of a
marriage. The court held that when the registry official is
presented with a marriage certificate, they are obliged to register
47
the applicants as married, unless such a registration would be
manifestly incorrect. The court held that the “manifestly
incorrect” exception did not apply in that case. The court did not
accept the argument of the state that the registration of a
homosexual couple as married is a registration tainted from
manifest incorrectness. The court in this case did not rule upon
the legal status of non-heterosexual marriages in Israel. However,
it held that the purpose of the population registry was to record
statistics and the role of the registration official was to collect
statistical material for the purpose of managing the registry. The
court held that the registration official should register in the
population register what is implied by the public certificate that
was presented to him by the petitioners, according to which the
petitioners were married. The court accordingly directed the
respondent to register the petitioners as married in the population
register. Without prejudice to the submission that same-sex
marriages should be granted legal recognition by Indian law, it is
submitted that even in the present case, there is no reason for the
state or its agencies to deny legal recognition of marriage to same-
sex couples who are legally married in foreign jurisdictions and
have valid marriage certificates. The Hon’ble Israeli Court held:
L. M. “23. Before we conclude, let us reemphasize what it is that we

are deciding today, and what it is that we are not deciding today.
We are deciding that within the context of the status of the
population registry as a recorder of statistics, and in view of the
role of the registration official as a collector of statistical material
for the purpose of managing the registry, the registration official
48
should register in the population register what is implied by
the public certificate that is presented to him by the petitioners,
according to which the petitioners are married. We are not
deciding that marriage between persons of the same sex is
recognized in Israel; we are not recognizing a new status of such
marriages; we are not adopting any position with regard to
recognition in Israel of marriages between persons of the same
sex that take place outside Israel (whether between Israeli
residents or between persons who are not Israeli residents). The
answer to these questions, to which we’re giving no answer
today, is difficult and complex. It is to be hoped that the Knesset
can direct its attention to these, or some of them. The result is that
we are making the order nisi absolute. The respondent shall
register the petitioners as married in item 2(a)(7) of the
population register.”Because it is submitted that similarly, in the
case of Section 7A(1)(d) of the Citizenship Act, there is no power
to examine whether the marriage in question is in accordance with
Indian law or not – and as long as the marriage is validly
registered in the jurisdiction where it was performed and the other
conditions of the provision are met, the foreign origin spouse is
entitled to apply of OCI status. Thus, the Consulate General of
India, being the authority to apostle the Petitioner Nos.1 and 2’s
marriage certificate, should have no discretion or power to refuse
such certification.
M. N. Because consensual sexual acts between persons of the same sex

have already been decriminalized by the Hon’ble Supreme Court
of India in Navtej Singh Johar Vs. Union of India (2018) 10 SCC
49
N. 1. It is submitted that even though Indian law is silent on the
recognition of same sex marriages, it is a settled principle that
where a marriage has been solemnized in a foreign jurisdiction,
the substantive law to be applied to such marriage or matrimonial
disputes is the law of that jurisdiction. Hence, inter alia, the
requirement in Section 7A(1)(d) that the marriage of the spouse
of the OCI cardholder be registered refers to legal registration in
the jurisdiction the parties were married in, and the substantive
law of that jurisdiction is the only relevant law in this regard.
Some of the judgments of the Hon’ble Supreme Court on this
issue are as follows:
(i) Y Narasimha Rao V. Y Venkata Lakshmi 1991 SCC (3)

451:
“20. From the aforesaid discussion the following rule can

be deduced for recognising foreign matrimonial judgment
in this country. The jurisdiction assumed by the foreign
court as well as the grounds on which the relief is granted
must be in accordance with the matrimonial law under
which the parties are married. The exceptions to this rule
may be as follows: (i) where the matrimonial action is filed
in the forum where the respondent is domiciled or
habitually and permanently resides and the relief is
granted on a ground available in the matrimonial law
under which the parties are married; (ii) where the
respondent voluntarily and effectively submits to the
jurisdiction of the forum as discussed above and contests
50
the claim which is based on a ground available under the
matrimonial law under which the parties are married; (iii)
where the respondent consents to the grant of the relief
although the jurisdiction of the forum is not in accordance
with the provisions of the matrimonial law of the parties.
21. The aforesaid rule with its stated exceptions has the
merit of being just and equitable. It does no injustice to any
of the parties. The parties do and ought to know their rights
and obligations when they marry under a particular law.
They cannot be heard to make a grievance about it later or
allowed to bypass it by subterfuges as in the present case.
The rule also has an advantage of rescuing the institution
of marriage from the uncertain maze of the rules of the
Private International Law of the different countries with
regard to jurisdiction and merits based variously on
domicile, nationality, residence-permanent or temporary
or ad hoc forum, proper law etc. and ensuring certainty in
the most vital field of national life and conformity with
public policy. The rule further takes account of the needs of
modern life and makes due allowance to accommodate
them. Above all, it gives protection to women, the most
vulnerable section of our society, whatever the strata to
which they may belong. In particular it frees them from the
bondage of the tyrannical and servile rule that wife's
domicile follows that of her husband and that it is the
husband's domicilliary law which determines the
jurisdiction and judges the merits of the case.”
51
(ii) Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR
1984 SC 1224
“10…The modern theory of Conflict of Laws recognises

and, in any event, prefers the jurisdiction of the State
which has the most intimate contact with the issues
arising in the case. The jurisdiction is not attracted by the
operation or creation of fortuitous circumstances such as
the circumstances as to when the child, whose custody is in
issue, is brought or for the time being lodged. To allow the
assumption of jurisdiction by another State in such
circumstances will only result encouraging forum-
shopping. Ordinarily, jurisdiction must follow upon
functional lines. That is to say, for example, that in matters
relating to matrimony and custody, the law of that place
must govern which has the closest concern with the well-
being of the spouses and the welfare of the offsprings of
marriage.”
O. A. Because therefore, a marriage like that of Petitioners Nos.1 and 2,

being validly registered under US law, must necessarily meet the
requirements of the term ‘registered’ under Section 7A(1)(d) of
the Citizenship Act.
FUNDAMENTAL RIGHTS UNDER ARTICLES 14 AND 21

ARE AVAILABLE TO ALL PERSONS INCLUDING
FOREIGNERS- LEGAL POSITION IN INDIA- RIGHT TO
52
CHOICE OF PARTNER IN MARRIAGE AND RIGHTS OF
LGBTQIA+ PERSONS-
P. B. Because the fundamental rights guaranteed by Articles 14 and 21
are available to all persons including foreigners. A catena of
judgments affirm the fundamental right to choice of partner in
marriage as well as the rights of LGBTQIA+ persons, which must
be read together and consistently:
(i) Per the judgment of Indu Malhotra, J in Navtej Singh

Johar, the LGBTQIA+ community has already suffered
grave injustice for centuries, due to delay in providing
redressal for the ignominy they have suffered, stemming
from society’s ignorance in understanding that
homosexuality is after all, a natural condition. This has
resulted in a denial of fundamental rights to the community.
It is most respectfully submitted that this Hon’ble Court, by
granting legal recognition to same sex marriages would
thus be taking a significant step towards remedying the
injustice that LGBTQIA+ persons have long suffered. As
has been held by the Hon’ble Supreme Court:
“644. History owes an apology to the members of

this community and their families, for the delay in
providing redressal for the ignominy and ostracism
that they have suffered through the centuries. The
members of this community were compelled to live a
life full of fear of reprisal and persecution. This was
on account of the ignorance of the majority to
53
recognise that homosexuality is a completely natural
condition, part of a range of human sexuality. The
misapplication of this provision denied them the
Fundamental Right to equality guaranteed by Article
14. It infringed the Fundamental Right to non-
discrimination under Article 15, and the
Fundamental Right to live a life of dignity and
privacy guaranteed by Article 21. ”
(ii) The Hon’ble Supreme Court of India, in the case of Shafin

Jahan vs. Asokan K.M. and Ors (2018) 16 SCC 368, held
that the right to marry a person of one's choice was integral
and fell within Article 21 of the Constitution of India.
“84. A marriage can be dissolved at the behest of
parties to it, by a competent court of law. Marital
status is conferred through legislation or, as the case
may be, custom. Deprivation of marital status is a
matter of serious import and must be strictly in
accordance with law. The High Court in the exercise
of its jurisdiction under Article 226 ought not to
have embarked on the course of annulling the
marriage. The Constitution recognises the liberty
and autonomy which inheres in each individual. This
includes the ability to take decisions on aspects
which define one’s personhood and identity. The
choice of a partner whether within or outside
marriage lies within the exclusive domain of each
individual. Intimacies of marriage lie within a core
54
zone of privacy, which is inviolable. The absolute
right of an individual to choose a life partner is not
in the least affected by matters of faith. The
Constitution guarantees to each individual the right
freely to practise, profess and propagate religion.
Choices of faith and belief as indeed choices in
matters of marriage lie within an area where
individual autonomy is supreme. The law prescribes
conditions for a valid marriage. It provides remedies
when relationships run aground. Neither the state
nor the law can dictate a choice of partners or limit
the free ability of every person to decide on these
matters. They form the essence of personal liberty
under the Constitution. In deciding whether Shafin
Jahan is a fit person for Hadiya to marry, the High
Court has entered into prohibited terrain. Our
choices are respected because they are ours. Social
approval for intimate personal decisions is not the
basis for recognising them. Indeed, the Constitution
protects personal liberty from disapproving
audiences.”
(iii) The Supreme Court also held the right to choose and marry
a person of one’s choice as a component of the right to
dignity within Article 21and that any infringement of this
right would be a constitutional violation. In Shakti Vahini
Vs. Union of India (2018) 7 SCC 192 it was held:
“45. The choice of an individual is an inextricable

part of dignity, for dignity cannot be thought of
where there is erosion of choice. True it is, the same
55
is bound by the principle of constitutional limitation
but in the absence of such limitation, none, we mean,
no one shall be permitted to interfere in the
fructification of the said choice. If the right to
express one's own choice is obstructed, it would be
extremely difficult to think of dignity in its sanctified
completeness. When two adults marry out of their
volition, they choose their path; they consummate
their relationship; they feel that it is their goal and
they have the right to do so. And it can
unequivocally be stated that they have the right and
any infringement of the said right is a
constitutional violation. The majority in the name of
class or elevated honour of clan cannot call for their
presence or force their appearance as if they are the
monarchs of some indescribable era who have the
power, authority and final say to impose any
sentence and determine the execution of the same in
the way they desire possibly harbouring the notion
that they are a law unto themselves or they are the
ancestors of Caesar or, for that matter, Louis the
XIV. The Constitution and the laws of this country do
not countenance such an act and, in fact, the whole
activity is illegal and punishable as offence under the
criminal law.”
(iv) The Supreme Court, in the case of Navtej Singh Johar,

while relying on Justice K.S.Puttaswamy, held that
56
individual autonomy is a component of the right to privacy
and that sexual orientation is a reflection of autonomy,
which is a part of an individual’s identity. It is most
respectfully submitted that in the present case, by granting
legal recognition to same sex marriages, this Hon’ble Court
would facilitate expression of sexual orientation for same
sex couples. It would thus uphold their fundamental right
to dignity, autonomy and human rights. As held in Navtej
Singh Johar Vs. Union of India (2018) 10 SCC 1 :
“136. While testing the constitutional validity
of Section 377 IPC, due regard must be given to the
elevated right to privacy as has been recently
proclaimed in Puttaswamy (supra). We shall not
delve in detail upon the concept of the right to
privacy as the same has been delineated at length in
Puttaswamy (supra). In the case at hand, our focus
is limited to dealing with the right to privacy vis-à-
vis Section 377 IPC and other facets such as right to
choice as part of the freedom of expression and
sexual orientation. That apart, within the
compartment of privacy, individual autonomy has a
significant space. Autonomy is individualistic. It is
expressive of self-determination and such self-
determination includes sexual orientation and
declaration of sexual identity. Such an orientation
or choice that reflects an individual‘s autonomy is
innate to him/her. It is an inalienable part
of his/her identity. The said identity under the
57
constitutional scheme does not accept any
interference as long as its expression is not against
decency or morality. And the morality that is
conceived of under the Constitution is
constitutional morality. Under the autonomy
principle, the individual has sovereignty over his/her
body. He/she can surrender his/her autonomy
wilfully to another individual and their intimacy in
privacy is a matter of their choice. Such concept of
identity is not only sacred but is also in recognition
of the quintessential facet of humanity in a person‘s
nature. The autonomy establishes identity and the
said identity, in the ultimate eventuate, becomes a
part of dignity in an individual. This dignity is
special to the man/woman who has a right to enjoy
his/her life as per the constitutional norms and
should not be allowed to wither and perish like a
mushroom. It is a directional shift from conceptual
macrocosm to cognizable microcosm. When such
culture grows, there is an affirmative move towards
a more inclusive and egalitarian society. Non-
acceptance of the same would tantamount to denial
of human rights to people and one cannot be
oblivious of the saying of Nelson Mandela ― ―to
deny people their human rights is to challenge their
very humanity.”
(v) …
58
“245. The sexual autonomy of an individual to
choose his/her sexual partner is an important pillar
and an insegregable facet of individual liberty.
When the liberty of even a single person of the
society is smothered under some vague and archival
stipulation that it is against the order of nature or
under the perception that the majority population is
peeved when such an individual exercises his/her
liberty despite the fact that the exercise of such
liberty is within the confines of his/her private space,
then the signature of life melts and living becomes a
bare subsistence and resultantly, the fundamental
right of liberty of such an individual is abridged.”
(vi) HMJ. D.Y. Chandrachud’s opinion in Navtej Singh Johar

has categorically held that members of the LGBTQIA+
Community are entitled to the full range of constitutional
rights and liberties protected by the Constitution, choice of
whom to partner with, not be discriminated against on the
basis of sexual orientation, benefits of equal citizenship and
equal protection of law. It is most respectfully submitted
that the right to legal recognition of marriage falls within
the ambit of these rights. The relevant para of the judgment
is as follows:
“618 We hold and declare that:

59
618.1 Section 377 of the Penal Code, in so far as it
criminalises consensual sexual conduct between
adults of the same sex, is unconstitutional;
618.2 Members of the LGBT community are entitled,

as all other citizens, to the full range of
constitutional rights including the liberties protected
by the Constitution;
618.3 The choice of whom to partner, the ability to

find fulfilment in sexual intimacies and the right not
to be subjected to discriminatory behaviour are
intrinsic to the constitutional protection of sexual
orientation;
618.4 Members of the LGBT Community are entitled

to the benefit of an equal citizenship, without
discrimination, and to the equal protection of law;
and
618.5 The decision in Koushal stands overruled.”
(v) The Madurai Bench of the Hon’ble High Court of Madras, in the
case of Arun Kumar & Sreeja vs. The Inspector General of
Registration, Chennai & Ors. WP(MD)No.4125 of 2019 and
WMP(MD)No.3220 of 2019, vide order dated 22.04.2019, held
that a marriage between a man and a transwoman, both professing
the Hindu religion was valid under the Hindu Marriage Act, 1955.
The court expanded the expression “bride” in Section 5 of the
Hindu Marriage Act, 1955 holding that the statute cannot have
60
static meaning and must be interpreted in light of the existing legal
system. The Ld. single judge affirmed the right of marriage of a
male and transgender person to marry, under Articles 14, 19(1)(a),
21 and 25 of the Constitution. The relevant para of the order is as
follows:
“8. Sex and gender are not one and the same. A person's
sex is biologically determined at the time of birth. Not
so in the case of gender. That is why after making an
exhaustive reference to the human rights jurisprudence
worldwide in this regard, the Hon'ble Supreme Court
held that Article 14 of the Constitution of India which
affirms that the State shall not deny to “any person”
equality before the law or the equal protection of the
laws within the territory of India would apply to
transgenders also. Transgender persons who are
neither male/female fall within the expression “person”
and hence entitled to legal protection of laws in all
spheres of State activity as enjoyed by any other citizen
of this country. Discrimination on the ground of sexual
orientation or gender identity, therefore, impairs
equality before law and equal protection of law and
violates Article 14 of the Constitution of India. (Vide
Para Nos.61 and 62 of the NLSA case). Article 19(1)(a)
and Article 21 were expansively interpreted so as to
encompass one's gender identity also.
(vi) The Hon’ble High Court of Madras, vide a recent order dated
7th June, 2021 in the case of Ms. S. Sushma & Anr. Vs.
61
Commissioner of Police, Greater Chennai Police & Ors.
W.P. No. 7284 of 2021, held that after the judgment by the
Supreme Court in Navtej Singh Johar v. Union of India 2018
(1) SCC 791, there was no doubt that the fundamental right to
life and personal liberty under Article 21 of the Constitution
protects and guarantees to all individuals, complete autonomy
over the most intimate decisions to their personal life,
including their choice of partners. The court further held that
the right to life and liberty encompasses the right to sexual
autonomy and freedom of expression and that sexual
autonomy is an essential aspect of the right of privacy under
Article 21. The relevant para of the order by the Madras High
Court is as follows:
“38. After the decision in Navtej Singh Johar (cited
supra), it is no longer open to doubt that Article 21
of the Constitution protects and guarantees to all
individuals, complete autonomy over the most
intimate decisions to their personal life, including
their choice of partners. Such choices are protected
by Article 21 of the Constitution as the right to life
and liberty encompasses the right to sexual
autonomy and freedom of expression. That apart,
sexual autonomy is an essential aspect of the right
of privacy which is another right recognised and
protected under Article 21 of the Constitution.
LGBTQIA+ persons, like cis persons, are entitled
to their privacy and have a right to lead a dignified
existence, which includes their choice of sexual
62
orientation, gender identity, gender presentation,
gender expression and choice of partner thereof.
This right and the manner of its exercise are
constitutionally protected under Article 21 of the
Constitution. Furthermore, the enactment of the
Transgender Persons (Protection of Rights) Act,
2019 is a clear pointer that Parliament has
recognized varying forms of sexual identity. This is
clear from the definition of transgender in Section
2(k) which is defined to mean “a person whose
gender does not match with the gender assigned to
that person at birth and includes trans-man or trans-
woman (whether or not such person has undergone
Sex Reassignment Surgery or hormone therapy or
laser therapy or such other therapy), person with
intersex variations, genderqueer and person having
such socio-cultural identities as kinner, hijra,
aravani and jogta. Under these circumstances, this
Court, as the sentinel on the qui vive, must exercise
its jurisdiction to protect the rights of the
petitioners, which are constitutionally guaranteed
under Articles 14, 15 and 21.”
RIGHT TO MARRIAGE OF QUEER PERSONS
Q. A. Because queer persons’ experiences and rights have been

historically overlooked and denied legal recognition, but are in
63
fact central to their exercise of rights under Articles 14,15,19 and
21.
"Queer" in the present petition is used as an inclusive,
umbrella term for people who identify as Lesbian, Gay,
Bisexual, Transgender, Queer, Intersex, Asexual, and other
related identities (LGBTQIA+).
Such people may:
(i) may not conform to the fixed, socially prescribed
categories of “male” and “female”,
(ii) may have gender identities that do not match their biological
sex at birth,
and/or
(iii) may live outside the heterosexual norm.
R. B. Because after the judgements of the Hon’ble Supreme Court in
NALSA v. Union of India and Navtej Singh Johar v. Union of

India (2018) 10 SCC 1, the normativity of cisgender identities
and heterosexuality has been rejected by law, and there is legal
recognition of gender identities and sexualities that exist on a
spectrum. The denial of full citizenship rights, particularly the
right to marriage goes against such legal recognition of identities
outside the binary and heterosexuality. The Hon’ble Supreme
Court recognised the inherent rights of such marginalised
identities and the denial of such rights will amount to treating
them as third-class citizens.
64
S. C. Because the Hon’ble Supreme Court of India in the NALSA v.
Union of India made clear that the rights of queer persons are to
be recognised and as zealously protected as the rights of others
as follows:
46. We have referred exhaustively to the various judicial

pronouncements and legislations on the international arena to
highlight the fact that the recognition of “sex identity gender”
of persons, and “guarantee to equality and non-
discrimination” on the ground of gender identity or expression
is increasing and gaining acceptance in international law and,
therefore, be applied in India as well.
....
“INDIA TO FOLLOW INTERNATIONAL CONVENTIONS
53. Indian Law, on the whole, only recognizes the paradigm of

binary genders of male and female, based on a person’s sex
assigned by birth, which permits gender system, including the law
relating to marriage, adoption, inheritance, succession and
taxation and welfare legislations. We have exhaustively referred
to various articles contained in the Universal Declaration of
Human Rights, 1948, the International Covenant on Economic,
Social and Cultural Rights, 1966, the International Covenant on
Civil and Political Rights, 1966 as well as the Yogyakarta
principles. Reference was also made to legislations enacted in
65
other countries dealing with rights of persons of transgender
community. Unfortunately we have no legislation in this country
dealing with the rights of transgender community. Due to the
absence of suitable legislation protecting the rights of the
members of the transgender community, they are facing
discrimination in various areas and hence the necessity to follow
the International Conventions to which India is a party and to
give due respect to other non-binding International Conventions
and principles. Constitution makers could not have envisaged that
each and every human activity be guided, controlled, recognized
or safeguarded by laws made by the legislature. Article 21 has
been incorporated to safeguard those rights and a constitutional
Court cannot be a mute spectator when those rights are violated,
but is expected to safeguard those rights knowing the pulse and
feeling of that community, though a minority, especially when
their rights have gained universal recognition and acceptance.
....
55. In the United States, however, it is open to the courts to

supersede or modify international law in its application or it may
be controlled by the treaties entered into by the United States. But,
till an Act of Congress is passed, the Court is bound by the law of
nations, which is part of the law of the land. Such a ‘supremacy
clause’ is absent in our Constitution. Courts in India would apply
the rules of International law according to the principles of
comity of Nations, unless they are overridden by clear rules of
domestic law. See: Gramophone Company of India Ltd. v.
Birendra Bahadur Pandey (1984) 2 SCC 534 and Tractor
66
Export v. Tarapore & Co. (1969) 3 SCC 562, Mirza Ali Akbar
Kashani v. United Arab Republic (1966) 1 SCR 391. In the case
of Jolly George Varghese v. Bank of Cochin (1980) 2 SCC 360,
the Court applied the above principle in respect of the
International Covenant on Civil and Political Rights, 1966 as
well as in connection with the Universal Declaration of Human
Rights. India has ratified the above mentioned covenants,
hence, those covenants can be used by the municipal courts as
an aid to the Interpretation of Statutes by applying the Doctrine
of Harmonization. But, certainly, if the Indian law is not in
conflict with the International covenants, particularly
pertaining to human rights, to which India is a party, the
domestic court can apply those principles in the Indian
conditions. The Interpretation of International Conventions is
governed by Articles 31 and 32 of the Vienna Convention on the
Law of Treaties of 1969.
58. Article 51, as already indicated, has to be read along

with Article 253 of the Constitution. If parliament has made any
legislation which is in conflict with the international law, then
Indian Courts are bound to give effect to the Indian Law, rather
than the international law. However, in the absence of a
contrary legislation, municipal courts in India would respect the
rules of international law. In His Holiness Kesavananda Bharati
Sripadavalvaru v. State of Kerala (1973) 4 SCC 225, it was stated
that in view of Article 51 of the Constitution, the Court must
interpret language of the Constitution, if not intractable, in the
67
light of United Nations Charter and the solemn declaration
subscribed to it by India. In Apparel Export Promotion Council
v. A. K. Chopra (1999) 1 SCC 759, it was pointed out that
domestic courts are under an obligation to give due regard to
the international conventions and norms for construing the
domestic laws, more so, when there is no inconsistency between
them and there is a void in domestic law. Reference may also be
made to the Judgments of this Court in Githa Hariharan (Ms) and
another v. Reserve Bank of India and another (1999) 2 SCC
228, R.D. Upadhyay v. State of Andhra Pradesh and
others (2007) 15 SCC 337 and People’s Union for Civil Liberties
v. Union of India and another (2005) 2 SCC 436.
59. In Vishaka and others v. State of Rajasthan and

Others (1997) 6 SCC 241, this Court under Article 141 laid
down various guidelines to prevent sexual harassment of women
in working places, and to enable gender equality relying on
Articles 11, 24 and general recommendations 22, 23 and 24 of
the Convention on the Elimination of All Forms of
Discrimination against Women. Any international convention
not inconsistent with the fundamental rights and in harmony
with its spirit must be read into those provisions, e.g., Articles
14, 15, 19 and 21 of the Constitution to enlarge the meaning and
content thereof and to promote the object of constitutional
guarantee.
60. The Principles discussed hereinbefore on TGs and the

International Conventions, including Yogyakarta principles,
which we have found not inconsistent with the various
68
fundamental rights guaranteed under the Indian Constitution,
must be recognized and followed, which has sufficient legal and
historical justification in our country.”
“Article 14 and Transgenders
61. Article 14 of the Constitution of India states that the State

shall not deny to “any person” equality before the law or the
equal protection of the laws within the territory of India. Equality
includes the full and equal enjoyment of all rights and freedom.
Right to equality has been declared as the basic feature of the
Constitution and treatment of equals as unequals or unequals as
equals will be violative of the basic structure of the
Constitution. Article 14 of the Constitution also ensures equal
protection and hence a positive obligation on the State to ensure
equal protection of laws by bringing in necessary social and
economic changes, so that everyone including TGs may enjoy
equal protection of laws and nobody is denied such
protection. Article 14 does not restrict the word ‘person’ and its
application only to male or female. Hijras/transgender persons
who are neither male/female fall within the expression ‘person’
and, hence, entitled to legal protection of laws in all spheres of
State activity, including employment, healthcare, education as
well as equal civil and citizenship rights, as enjoyed by any other
citizen of this country.”
T. D. Because the Hon’ble Supreme Court in NALASA (supra) referred

to its judgment in Anuj Garg v. Hotel Association of
69
India (2008) 3 SCC 1 (paragraphs 34-35), wherein the court had
held that personal autonomy includes both the negative right to
not be subject to interference by others and the positive right of
individuals to make decisions about their life, to express
themselves and to choose which activities to take part in, as
follows:
“Article 21 and Transgenders
73. Article 21 of the Constitution of India reads as follows:
“21. Protection of life and personal liberty – No person shall be

deprived of his life or personal liberty except according to
procedure established by law.” Article 21 is the heart and soul of
the Indian Constitution, which speaks of the rights to life and
personal liberty. Right to life is one of the basic fundamental
rights and not even the State has the authority to violate or take
away that right. Article 21 takes all those aspects of life which go
to make a person’s life meaningful. Article 21 protects the dignity
of human life, one’s personal autonomy, one’s right to privacy,
etc. Right to dignity has been recognized to be an essential part
of the right to life and accrues to all persons on account of being
humans. In Francis Coralie Mullin v. Administrator, Union
Territory of Delhi (1981) 1 SCC 608 (paras 7 and 8), this Court
held that the right to dignity forms an essential part of our
constitutional culture which seeks to ensure the full development
and evolution of persons and includes “expressing oneself in
diverse forms, freely moving about and mixing and comingling
with fellow human beings”.
70
…
75. Article 21, as already indicated, guarantees the protection of

“personal autonomy” of an individual. In Anuj Garg v. Hotel
Association of India (2008) 3 SCC 1 (paragraphs 34-35), this
Court held that personal autonomy includes both the negative
right of not to be subject to interference by others and the positive
right of individuals to make decisions about their life, to express
themselves and to choose which activities to take part in. Self-
determination of gender is an integral part of personal autonomy
and self-expression and falls within the realm of personal liberty
guaranteed under Article 21 of the Constitution of India.”
U. E. Because the Hon’ble Supreme Court, in the NALSA judgment,

held that
“83. We, therefore, conclude that discrimination on the basis of

sexual orientation or gender identity includes any discrimination,
exclusion, restriction or preference, which has the effect of
nullifying or transposing equality by the law or the equal
protection of laws guaranteed under our Constitution, and hence
we are inclined to give various directions to safeguard the
constitutional rights of the members of the TG community.”
V. F. Because A.K. Sikri J of the Hon’ble Supreme Court, in his
concurring opinion in the NALSA judgment, held that non-

recognition deprived transgenders of various valuable rights and
privileges otherwise available to citizens of India. It is submitted
that the same rationale should apply to the present issue, since
non-recognition of same-sex marriages deprives same-sex
71
couples of various rights and privileges. The relevant para of the
NALSA judgment is as follows:
“87. Indubitably, the issue of choice of gender identify has all the
trappings of a human rights. That apart, as it becomes clear from
the reading of the judgment of my esteemed Brother
Radhakrishnan,J., the issue is not limited to the exercise of choice
of gender/sex. Many rights which flow from this choice also come
into play, inasmuch not giving them the status of a third gender
results in depriving the community of TGs of many of their
valuable rights and privileges which other persons enjoy as
citizens of this Country. There is also deprivation of social and
cultural participation which results into eclipsing their access to
education and health services. Radhakrishnan,J. has exhaustively
described the term ‘Transgender’ as an umbrella term which
embraces within itself a wide range of identities and experiences
including but not limited to pre- operative/post-operative trans
sexual people who strongly identify with the gender opposite to
their biological sex i.e. male/ female. Therein, the history of
transgenders in India is also traced and while doing so, there is
mention of upon the draconian legislation enacted during the
British Rule, known as Criminal Tribes Act, 1871 which treated,
per se, the entire community of Hizra persons as innately
‘criminals’, ‘addicted to the systematic commission of non-
bailable offences’.”
W. G. Because the Hon’ble Supreme Court, in the NALSA judgment,
held that human rights, being universally recognized exist

irrespective of whether they are granted or recognized by the legal
72
and social system within which we live. These are thus “pre-legal
rights”, which are neither granted by people nor taken away by
them. The court further delved into international human rights law
and the two complementary principles that equality is founded
upon within it, being non-discrimination and reasonable
differentiation, as folows:
94. There is thus a universal recognition that human rights are

rights that “belong” to every person, and do not depend on the
specifics of the individual or the relationship between the right-
holder and the right- grantor. Moreover, human rights exist
irrespective of the question whether they are granted or
recognized by the legal and social system within which we live.
They are devices to evaluate these existing arrangements: ideally,
these arrangements should not violate human rights. In other
words, human rights are moral, pre-legal rights. They are not
granted by people nor can they be taken away by them.
95. In international human rights law, equality is found upon two

complementary principles: non-discrimination and reasonable
differentiation. The principle of non-discrimination seeks to
ensure that all persons can equally enjoy and exercise all their
rights and freedoms. Discrimination occurs due to arbitrary
denial of opportunities for equal participation. For example,
when public facilities and services are set on standards out of the
reach of the TGs, it leads to exclusion and denial of rights.
Equality not only implies preventing discrimination (example, the
protection of individuals against unfavourable treatment by
introducing anti- discrimination laws), but goes beyond in
73
remedying discrimination against groups suffering systematic
discrimination in society. In concrete terms, it means embracing
the notion of positive rights, affirmative action and reasonable
accommodation.”
MARRIAGE AS A RIGHT TO LIFE: UNDER ARTICLE 21 OF

THE CONSTITUTION OF INDIA
X. A. Because the right to life guaranteed under Article 21 includes the

right to autonomy and individual choice. The choice of a marital
partner are part of an individual’s autonomy. The constitution
guarantees the right to lead a dignified life. J. Chandrachud in
Navtej Singh Johar v. Union of India (2018) 10 SCC 1 spoke of
the need of the State to recognise the capacity of an individuals to
make exercise their autonomy removed from the expectations of
society or stereotypes of immorality. This also affirms the right to
exercise choices that may not be accepted by society. The relevant
para of the judgment is as follows:
“474.The right to privacy enables an individual to

exercise his or her autonomy, away from the glare
of societal expectations. The realisation of the
human personality is dependent on the autonomy
of an individual. In a liberal democracy,
recognition of the individual as an autonomous
person is an acknowledgment of the State’s respect
for the capacity of the individual to make
independent choices. The right to privacy may be
74
construed to signify that not only are certain acts
no longer immoral, but that there also exists an
affirmative moral right to do them.(…)”
Y. B. Because the right to life guaranteed under Article 21 includes the
right to privacy and dignity. This privacy allows an individual

sovereignty over their own body. As acknowledged in Justice K.S.
Puttaswamy v. Union of India (2017) 10 SCC 1, family, marriage,
procreation and sexual orientation are all integral to the dignity of
the individual. The intimate choice of an individual to enter into
marriage with a queer or non-heterosexual partner is within their
right to privacy and right to live with dignity. Justice Nariman in
Navtej Singh Johar v Union of India (2018) 10 SCC 1 citing the
Hon’ble Supreme Court’s judgement in Justice K.S. Puttaswamy
v. Union of India recognised the right to make intimidate choices
within the right to privacy and right to live with dignity. The
relevant para of the judgment is as follows:
“350. Given our judgment in Puttaswamy (supra), in

particular, the right of every citizen of India to live
with dignity and the right to privacy including the
right to make intimate choices regarding the
manner in which such individual wishes to live
being protected by Articles 14, 19 and 21. it is clear
that Section 377, insofar as it applies to same-sex
consenting adults, demeans them by having them
75
prosecuted instead of understanding their sexual
orientation and attempting to correct centuries of the
stigma associated with such persons.”
Z. C. In Justice K.S. Puttaswamy v. Union of India, J.
Chandrachud speaking for the majority held:
“271. We need also emphasise the lack of substance

in the submission that privacy is a privilege for the
few. Every individual in society irrespective of social
class or economic status is entitled to the intimacy
and autonomy which privacy protects. It is privacy
as an intrinsic and core feature of life and personal
liberty which enables an individual to stand up
against a programme of forced sterilization. Then
again, it is privacy which is a powerful guarantee if
the State were to introduce compulsory drug trials of
non-consenting men or women. The sanctity of
marriage, the liberty of procreation, the choice of a
family life and the dignity of being are matters which
concern every individual irrespective of social strata
or economic well being. The pursuit of happiness is
founded upon autonomy and dignity. Both are
essential attributes of privacy which makes no
distinction between the birth marks of individual.”
AA. D. Because the right to privacy under Article 21 encompasses
privacy with respect to family life. The right to marry of queer or

76
non-heterosexual persons as recognised as part of the law in the
United States was cited in the judgement of the Hon’ble Supreme
Court in Justice K.S. Puttaswamy v. Union of India, wherein the
decision to marry someone forms part of the foundation of family
and consequently is within the right to privacy in matters of family
life. The relevant para of the judgment is as follows:
“194. In Obergefell v. Hodges 576 US - (2015), the

Court held in a 5:4 decision that the fundamental
right to marry is guaranteed to same-sex couples by
both the Due Process Clause and the Equal
Protection Clause of the Fourteenth Amendment.
Justice Kennedy authored the majority opinion
(joined by Justices Ginsburg, Breyer, Sotamayor and
Kagan): Indeed, the Court has noted it would be
contradictory to recognize a right of privacy with
respect to other matters of family life and not with
respect to the decision to enter the relationship that
is the foundation of the family in our society.”
BB. E. Because the recognition of the right to marry for queer persons
under Article 21 does not violate the foundation of family unit in
the country, but in fact re-enforces it. Currently, the framework of
marriage denies the right to marry to persons of non-heterosexual
orientations. The right to companionship and sexual intimacy of
non-heterosexual persons under Article 21 was recognised in
Navtej Singh Johar v. Union of India (2018) 10 SCC 1. Marriage
is only the social and legal recognition of this companionship and
77
sexual intimacy. Legal recognition of this relationship invites
rights and liabilities for both parties. Indian courts have found
similar rights and liabilities to exist even in live-in relationships
that in the nature of marriages, recognising that it is the social
circumstances that make a marriage. To deny non-heterosexuals
the right to marriage, but recognise their right to intimacy,
prevents them from having families and allows such relationships
to exist like marriages without rights and liabilities.
CC. F. Because several high courts including this Hon’ble court have
recognised the legitimacy of non-heterosexual relationships and

marital partners after Navtej Singh Johar v. Union of India (2018)
10 SCC 1, and accorded them protection under habeus corpus
jurisdiction. The following is an illustrative list of such cases-
(i) Hon’ble Delhi High Court order dated 1.10.2018 in

Sadhana Sinsinwar & Anr. v. State & Ors W.P. (Crl)
3005/2018.
(ii) Hon’ble High Court of Punjab and Haryana order dated
22.07.2020 in Paramjit Kaur & Anr. v. State of Punjab
C.R.W.P. No. 5024 of 2020.
(iii) Hon’ble High Court of Gujarat, Ahmedabad order dated
23.07.2020 in Vanitaben Damjibhai Solanki v. State of
Gujarat in Special Criminal Application No. 3011 of 2020.
(iv) Hon’ble Delhi High Court order dated 12.04.2019 in
Bhawna & Ors v State W.P.(Crl) 1075/2019.
78
(v) Hon’ble Orissa High Court order dated 24.8.2020 in
Chinmayee Jena @ Sonu Krishna Jena v State of Odisha &
other. W.P.(Crl) 57/2020.
DD. G. Because when live-in relationships in the nature of marriage are

recognised and live in relationships between queer partners have
been recognised, the jurisprudence of the courts is leading
towards the recognition of the inherent right to marriage of non-
heterosexual persons. In order dated 12.6.2020 in Madhubala v.
State of Uttarakhand & Ors Paramjit Kaur Habeas Corpus
petition No. 8 of 2020, the Hon’ble High Court of Uttarakhand
recognised that an individual has the right to choose with whom
they share companionship and a home. The single judge held that
consensual co-habitation between two individuals of the same
gender identity is a right under Article 21 of the Constitution and
it is the court’s duty to protect the right to self-determination and
freedom to choose their sexual orientation and partner.
“3. Incidentally the question, which arises in this

writ petition filed for seeking a writ of habeas corpus
is to the effect that whether two adult persons of
same gender can be permitted to be in a relationship
and further whether they can be permitted to live
together, which is a wider a question already raised
before various High Courts of the country involving
a consideration of a question as to whether the
liberty of a person, who had attained majority can be
curtailed and one of the leading judgments on this
79
aspect is that of as reported in AIR 2018 SC 346
‘Soni Gerry vs. Gerry Douglas’, wherein, the
Hon’ble Apex Court has observed that “it needs no
special emphasis to state that attaining the age of
majority in an individual’s life has its own
significance. He or she is entitled to make his or her
choice. The court can, so long as the choice remains,
assume the role of parnis patriae. The daughter is
entitled to enjoy her freedom as the law permits and
the courts shall not assume the role of a super
guardian being moved by any kind of sentiments of
the mother or egotism of the father. We say so
without any reservations.”
4. In view of the aforesaid dictum of the Hon’ble

Apex Court it provides that even if the parties, who
are living together though they are belonging to the
same gender; they are not competent to enter into a
wedlock, but still they have got a right to live
together even outside the wedlock. It would further
be not out of pretext to mention that a live-in
relationship has now being recognized by the
legislature itself, which has found its place under
the provisions of protection of women from
Domestic Violence Act.
5. The question is that, as to whether a person, who

is alleged to be a detenue and produced before the
court, if it is found by his or her independent choice
80
and it is seen that the person seeking the release from
the illegal confinement, which is being imposed by
the private persons therein, if in the proceedings of
a writ, it is essential to remember that the song of
liberty is to be sung with sincerity and at the
exclusive choice of an individual is appropriately
respected and conferred its esteemed status as the
constitution guarantees, it was found that the social
values and morals they do have their space, but they
are not above the constitutional guarantee of
freedom assigned to a citizen of a country. This
freedom is both a constitutional as well as a human
right. Hence, the said freedom and the exercise of
jurisdiction in a writ courts should not transgress
into an area of determining the suitability of a
partner to a marital life, that decision exclusively
rests with the individual themselves that the State,
society or even the court cannot intrude into the
domain and that is the strength provided by our
constitution, which lies in its acceptance of plurality
and diversity of the culture. Intimacy of marriage,
including the choice of partner, which individual
make, on whether or not to marry and whom to
marry are the aspects which exclusively lies outside
the control of the State or the Society. The court as
an upholder of the constitutional freedom has to
safeguard that such a relationship where there is a
choice exclusively vested with a major person has
81
to be honoured by the courts depending upon the
statements recorded by the individual before the
court.
6. In view of the above concept, this Court is in

agreement that the consensual cohabitation
between two adults of the same sex cannot in our
understanding be illegal far or less a crime because
its a fundamental right which is being guaranteed
to the person under article 21 of the Constitution of
India, which inheres within its ambit and it is wide
enough in its amplitude to protect an inherent right
of self determination with regards to one’s identity
and freedom of choice with regards to the sexual
orientation of choice of the partner. In such type of
circumstances it is exclusively the statement
recorded of the detenue, who is said to be
wrongfully/illegaly confined and who is said to be
having a consensual or a lesbian relationship with
the petitioner, which becomes of a prime importance,
to be considered while parting with the judgment.
Since initially the parties were not present, hence,
the detenue was directed to appear in person in the
custody of the respondent police official and, hence,
she was directed to be produced on the date fixed.”
In Chinmayee Jena @ Sonu Krishna Jena v State of Odisha

& other., a transman and a woman sought protection from
82
the court from interference with their live-in relationship.
They argued that even if they are not allowed to enter in
wedlock, they have the right to live together outside the
wedlock. The Hon’ble Orissa High Court after quoting
relevant parts from Navtej Singh Johar v. Union of India
(2018) 10 SCC 1 and NALSA v. Union of India held that;
13. Thus, taking into consideration the aforesaid

authoritative pronouncements of the Hon’ble
Supreme Court, there is hardly any scope to take a
view other than holding that the petitioner has the
right of self-determination of sex/gender and also
he has the right to have a live-in relationship with
a person of his choice even though such person
may belong to the same gender as the petitioner.
14. Therefore, we allow the writ application

(criminal) and direct that the petitioner and the
daughter of the Opposite Party No.5 have the right
to decide their sexual preferences including the
right to stay as live-in partners. The State shall
provide all kind of protection to them, which are
enshrined in Part-III of the Constitution of India,
which includes the right to life, right to equality
before law and equal protection of law. Hence, we
direct the Opposite Party No.2 to clear the way by
taking appropriate administrative/police action to
facilitate Rashmi to join the society of the petitioner.
83
However, we are also alive to the apprehensions of
the Opposite Party No.5, mother of the girl. Hence,
we further direct that the petitioner shall take all
good care of the lady as long as she is residing with
him and that the Opposite Party Nos. 5 and 6 and the
sister of the lady would be allowed to have a
communication with her both over phone or
otherwise. They have the right to visit the lady in the
residence of the petitioner. The lady shall have all
the rights of a woman as enshrined under the
Protection of Women from Domestic Violence Act,
2005. The Opposite Party No.3, Inspector In-Charge
of the Khandagiri Police Station, Khandagiri,
Bhubaneswar shall obtain a written undertaking (to
that effect) from the petitioner and shall keep a copy
thereof in his office and send the original to this
Court to form a part of this record. It should be sent
in the address of the Registrar General of this Court.
EE. H. Because an individual’s rights under Article 21 cannot be fully
realized unless an integral right like the right to marry is not

restricted by the state. In NALSA v. Union of India (2014) 5 SCC
438, J. a two judge bench of the Hon’ble Supreme Court
recognised the importance of civil rights being available to all
persons. A denial of the basic civil right to marriage to non-
heterosexual persons denies them the right to life and liberty
under Article 21.
84
“119. Therefore, gender identification becomes very
essential component which is required for enjoying
civil rights by this community. It is only with this
recognition that many rights attached to the sexual
recognition as ‘third gender’ would be available to
this community more meaningfully viz. the right to
vote, the right to own property, the right to marry,
the right to claim a formal identity through a
passport and a ration card, a driver’s license, the
right to education, employment, health so on.
120. Further, there seems to be no reason why a

transgender must be denied of basic human rights
which includes Right to life and liberty with dignity,
Right to Privacy and freedom of expression, Right to
Education and Empowerment, Right against
violence, Right against Exploitation and Right
against Discrimination. Constitution has fulfilled its
duty of providing rights to transgenders. Now it’s
time for us to recognize this and to extend and
interpret the Constitution in such a manner to ensure
a dignified life of transgender people. All this can be
achieved if the beginning is made with the
recognition that TG as third gender.”
FF. I. Because marriage as a social institution has developed over time

and heteronormative, cisgender and patriarchal norms that uphold
only heterosexual marriages as valid marriages are outside the
85
purview of the Constitution. In Joseph Sine v. Union of India
(2019) 3 SCC 39, a constitution bench of the Hon’ble Supreme
Court recognised the change in the social institution of marriage
and opined that law regulating this institution must reflect the
right to privacy and dignity of citizens under the Constitution.
“200. Marriage as a social institution has

undergone changes. Propelled by access to
education and by economic and social progress,
women have found greater freedom to assert their
choices and preferences. The law must also reflect
their status as equals in a marriage, entitled to the
constitutional guarantees of privacy and dignity.
The opinion delivered on behalf of four judges in
Puttaswamy held thus:
“130…As society evolves, so must
constitutional doctrine. The institutions
which the Constitution has created must
adapt flexibly to meet the challenges in a
rapidly growing knowledge economy. Above
all, constitutional interpretation is but a
process in achieving justice, liberty and
dignity to every citizen.”
MARRIAGE AS A RIGHT TO FREE EXPRESSION UNDER
ARTICLE 19 (1)(a)
GG. J. Because disallowing non-heterosexual individuals from marriage

is discrimination against individuals on the basis of their sexual
86
orientation and is violative of Article 19(1)(a). In Navtej Singh
Johar v. Union of India (2018) 10 SCC 1 the Hon’ble Supreme
Court has recognised that the expression of an individual’s
sexuality or sexual orientation or right to choose a partner is
protected under Article 19(1)(a) and any discrimination on the
basis of sexual orientation would violative Article 19(1)(a).
“268.7. Sexual orientation is one of the many

biological phenomena which is natural and inherent
in an individual and is controlled by neurological
and biological factors. The science of sexuality has
theorized that an individual exerts little or no control
over who he/she gets attracted to. Any
discrimination on the basis of one’s sexual
orientation would entail a violation of the
fundamental right of freedom of expression.”
HH. K. Because even non-heterosexuals have the right to express their

intimacies, companionship and personality to the world and the
law through marriage and restriction of such right would fall foul
of Article 19(1)(a). The choice of a marital partner is an
expression of choice and exercise of freedom under Article
19(1)(a). In Shakti Vahini v. Union of India (2018) 7 SCC 192,
Vikas Yadav v. State of UP (2016) 9 SCC 541 and Asha Ranjan v.
State of Bihar (2017) 4 SCC 397, the Hon’ble Supreme Court has
recognised that the right to marry of two consenting adults is
protected under Article 19 and cannot be restricted due to group
87
thinking or class honour. in In NALSA v. Union of India, the
Hon’ble Supreme Court recognised that an individual’s gender
identity is a reflection of their personality and is part of Article
19(1)(a). The state is bound to protect and recognise these rights.
“72. Gender identity, therefore, lies at the core of one's

personal identity, gender expression and presentation and,
therefore, it will have to be protected under Article 19(1)(a)
of the Constitution of India. A transgender's personality
could be expressed by the transgender's behaviour and
presentation. State cannot prohibit, restrict or 42 interfere
with a transgender's expression of such personality, which
reflects that inherent personality. Often the State and its
authorities either due to ignorance or otherwise fail to
digest the innate character and identity of such persons.
We, therefore, hold that values of privacy, self-identity,
autonomy and personal integrity are fundamental rights
guaranteed to members of the transgender community
under Article 19(1)(a) of the Constitution of India and the
State is bound to protect and recognise those rights.”
II. L. Because the violation of Article 19(1)(a) due to non-recognition
of non-heterosexual marriages is an unreasonable restriction and

not protected by Article 19(2). The Hon’ble Supreme Court has
held that reasonable restrictions cannot be arbitrary or of an
excessive nature, beyond what is required in the interests of the
public. The restrictions on non-heterosexual marriages, denying a
88
whole community of people the right to marriage only on the basis
of their gender identity or sexual orientation are excessive and
arbitrary. In Navtej Singh Johar v. Union of India (2018) 10 SCC
1, the Hon’ble Supreme Court found that Section 377 of the
Indian Penal Code 1860 was violative of Article 19(1)(a) as it was
an unreasonable restriction and did not harm public decency or
morality.
“261. That apart, any display of affection amongst

the members of the LGBT community towards their
partners in the public so long as it does not amount
to indecency or has the potentiality to disturb public
order cannot be bogged down by majority
perception. Section 377 IPC amounts to
unreasonable restriction as it makes carnal
intercourse between consenting adults within their
castle a criminal offence which is manifestly not
only overboard and vague but also has a chilling
effect on an individual‘s freedom of choice.
262. In view of the test laid down in the aforesaid

authorities, Section 377 IPC does not meet the
criteria of proportionality and is violative of the
fundamental right of freedom of expression
including the right to choose a sexual partner.
Section 377 IPC also assumes the characteristic of
unreasonableness, for it becomes a weapon in the
hands of the majority to seclude, exploit and harass
89
the LGBT community. It shrouds the lives of the
LGBT community in criminality and constant fear
mars their joy of life. They constantly face social
prejudice, disdain and are subjected to the shame of
being their very natural selves. Thus, an archaic law
which is incompatible with constitutional values
cannot be allowed to be preserved.”
JJ. M. Because the violation of Article 19(1)(a) due to non-recognition

of queer marriages is not protected by allowances of restrictions
on the basis of decency or morality in Article 19(2). Although
non-heterosexual marriages may be seen as unnatural or indecent
to certain communities or individuals, this cannot be extended to
restrict the right to marry of non-heterosexual persons. In S.
Khushboo v. Kanniammal and another (2010) 5 SCC 600, the
Hon’ble Supreme Court held that while decency and morality
may be grounds on which reasonable restrictions can be imposed,
this should not be beyond a rational or logical limit and must be
tolerant of unpopular social views.
“45. Even though the constitutional freedom

of speech and expression is not absolute and
can be subjected to reasonable restrictions on
grounds such as `decency and morality'
among others, we must lay stress on the need
to tolerate unpopular views in the socio-
cultural space. The framers of our
Constitution recognised the importance of
90
safeguarding this right since the free flow of
opinions and ideas is essential to sustain the
collective life of the citizenry. While an
informed citizenry is a pre-condition for
meaningful governance in the political sense,
we must also promote a culture of open
dialogue when it comes to societal attitudes.
46. Admittedly, the appellant's remarks did

provoke a controversy since the acceptance of
premarital sex and live-in relationships is
viewed by some as an attack on the centrality
of marriage. While there can be no doubt that
in India, marriage is an important social
institution, we must also keep our minds open
to the fact that there are certain individuals or
groups who do not hold the same view. To be
sure, there are some indigenous groups within
our country wherein sexual relations outside
the marital setting are accepted as a normal
occurrence. Even in the societal mainstream,
there are a significant number of people who
see nothing wrong in engaging in premarital
sex. Notions of social morality are inherently
subjective and the criminal law cannot be
used as a means to unduly interfere with the
domain of personal autonomy. Morality and
Criminality are not co-extensive.
91
47. In the present case, the substance of the

controversy does not really touch on whether
premarital sex is socially acceptable. Instead,
the real issue of concern is the
disproportionate response to the appellant's
remarks. If the complainants vehemently
disagreed with the appellant's views, then they
should have contested her views through the
news media or any other public platform. The
law should not be used in a manner that has
chilling effects on the freedom of speech and
expression.”
KK. N. Because one’s right to marry an individual of their choice is a

freedom accorded to every person under Article 19, and read with
Article 21, their right to privacy allows them the inviolable right
to determine how this freedom is exercised. An individual has the
right to enter into a non-heterosexual marriage if they so choose
in exercise of their freedom and rights under Article 19 and 21 of
the Constitution. In Justice K.S. Puttaswamy v. Union of India, J.
Chandrachud, speaking for the majority held,
“298. Privacy of the individual is an essential aspect

of dignity. Dignity has both an intrinsic and
instrumental value. As an intrinsic value, human
dignity is an entitlement or a constitutionally
protected interest in itself. In its instrumental facet,
92
dignity and freedom are inseparably inter-twined,
each being a facilitative tool to achieve the other.
The ability of the individual to protect a zone of
privacy enables the realization of the full value of life
and liberty. Liberty has a broader meaning of which
privacy is a subset. All liberties may not be exercised
in privacy. Yet others can be fulfilled only within a
private space. Privacy enables the individual to
retain the autonomy of the body and mind. The
autonomy of the individual is the ability to make
decisions on vital matters of concern to life. Privacy
has not been couched as an independent
fundamental right. But that does not detract from the
constitutional protection afforded to it, once the true
nature of privacy and its relationship with those
fundamental rights which are expressly protected is
understood. Privacy lies across the spectrum of
protected freedoms. The guarantee of equality is a
guarantee against arbitrary state action. It prevents
the state from discriminating between individuals.
The destruction by the state of a sanctified personal
space whether of the body or of the mind is violative
of the guarantee against arbitrary state action.
Privacy of the body entitles an individual to the
integrity of the physical aspects of personhood. The
intersection between one’s mental integrity and
privacy entitles the individual to freedom of thought,
the freedom to believe in what is right, and the
93
freedom of self-determination. When these
guarantees intersect with gender, they create a
private space which protects all those elements
which are crucial to gender identity. The family,
marriage, procreation and sexual orientation are
all integral to the dignity of the individual. Above
all, the privacy of the individual recognises an
inviolable right to determine how freedom shall be
exercised. An individual may perceive that the best
form of expression is to remain silent. Silence
postulates a realm of privacy. An artist finds
reflection of the soul in a creative endeavour. A
writer expresses the outcome of a process of thought.
A musician contemplates upon notes which
musically lead to silence. The silence, which lies
within, reflects on the ability to choose how to
convey thoughts and ideas or interact with others.
These are crucial aspects of personhood. The
freedoms under Article 19 can be fulfilled where
the individual is entitled to decide upon his or her
preferences. Read in conjunction with Article 21,
liberty enables the individual to have a choice of
preferences on various facets of life including what
and how one will eat, the way one will dress, the
faith one will espouse and a myriad other matters
on which autonomy and self-determination require
a choice to be made within the privacy of the mind.
The constitutional right to the freedom of religion
94
under Article 25 has implicit within it the ability to
choose a faith and the freedom to express or not
express those choices to the world. These are some
illustrations of the manner in which privacy
facilitates freedom and is intrinsic to the exercise of
liberty. The Constitution does not contain a separate
article telling us that privacy has been declared to
be a fundamental right. Nor have we tagged the
provisions of Part III with an alpha suffixed right of
privacy: this is not an act of judicial redrafting.
Dignity cannot exist without privacy. Both reside
within the inalienable values of life, liberty and
freedom which the Constitution has recognised.
Privacy is the ultimate expression of the sanctity of
the individual. It is a constitutional value which
straddles across the spectrum of fundamental rights
and protects for the individual a zone of choice and
self-determination.”
THE RIGHT TO MARRIAGE UNDER ARTICLES 14 AND 15

(1)
LL. O. Because Article 14 requires equal treatment of equally situated
individuals and the state cannot deny queer persons the legal right
to marriage, while similarly allowing heterosexual individuals the
legal right to marriage. In Navtej Singh Johar v. Union of India
(2018) 10 SCC 1, the then CJI Dipak Mishra recognised the need
to treat individuals belonging to the LGBT community equally
95
with the same human, fundamental and constitutional rights that
other citizens have.
“255. The LGBT community possess the same

human, fundamental and constitutional rights as
other citizens do since these rights in here in
individuals as natural and human rights. We must
remember that equality is the edifice on which the
entire non-discrimination jurisprudence rests.
Respect for individual choice is the very essence of
liberty under law and, thus, criminalizing carnal
intercourse under Section 377 IPC is irrational,
indefensible and manifestly arbitrary.”
MM. P. Because in NALSA v. Union of India, the Hon’ble Supreme Court

concluded that discrimination on the basis of gender identity or
sexual orientation includes restrictions that deny equal protection
of the law to such persons and directed compliance with
constitutional rights of members of the transgender community.
Persons with non-heterosexual sexual orientations deserve equal
protection of the law and the state must ensure that the law
provides for a framework for them to exercise their right to
marriage.
“83. We, therefore, conclude that discrimination on

the basis of sexual orientation or gender identity
includes any discrimination, exclusion, restriction
96
or preference, which has the effect of nullifying or
transposing equality by the law or the equal
protection of laws guaranteed under our
Constitution, and hence we are inclined to give
various directions to safeguard the constitutional
rights of the members of the TG community.”
NN. Q. Because there is no reasonable classification due to which non-

heterosexual persons can be treated differently in relation to
marriage. What distinguishes most queer marriages from
heterosexual marriages is the ability for a heterosexual couple to
reproduce. Marriage is a social relationship and also a legal
relationship, for which reproduction is not sine qua non. All
heterosexual marriages are valid regardless of the ability to have
biological children, nor does having the ability to have biological
children act as a qualification for registration of a marriage. In
NALSA v. Union of India, the Hon’ble Supreme Court accord
legal recognition to transgender persons who are neither men or
women and do not have reproductive capacities. The Hon’ble
Supreme Court also recognised that such persons have issues with
marriage and adoption and found that it was essential for the state
to accord full civil rights including the right to marriage to them.
OO. R. Because there is no constitutionally permissible intelligible

differentia which can justify treating non-heterosexuals and
heterosexuals differently for the right to marriage.
Heterosexuality is an accepted form of union in both religious and
formal law on which other rights such as divorce, maintenance,
97
inheritance and other similar frameworks are dependent. No such
framework exists for non-heterosexual couples. The non-
existence of frameworks for regulation cannot act as a bar to legal
recognition and accordance of constitutionally mandated rights.
In Navtej Singh Johar v. Union of India (2018) 10 SCC 1, it was
argued that there will be a cascading effect on other laws such as
marriage laws, divorce laws, sexual crimes and open a floodgate
of social issues. Despite this, the right of LGBTQIA+ persons to
have sexual relationships was recognised and Section 377 of the
Indian Penal Code 1860 was decriminalised. In NALSA v. Union
of India for example, persons who did not come within the current
framework of law where given space under the law and all
consequent civil rights. As society develops, so should the law.
Laws that do not fulfil rights under the Constitution should be
changed to bring them in compliance with the Constitution and
where there is a lacunae, such law should be created.
PP. S. Because denial of the right to marry to non-heterosexuals is

discrimination under Article 15(1). “Sex” under Article 15
includes gender and sexual orientation, as decided in NALSA v.
Union of India and Navtej Singh Johar v. Union of India (2018)
10 SCC 1. Discrimination against non-heterosexuals is
discrimination on the basis of both gender or sex and sexual
orientation. The right to marry of sex or gender identities outside
the binary are is not recognised under the present legislation. An
individual’s sexual orientation being non-heterosexual directly
prevents them from registering a marriage in the country. In
Navtej Singh Johar v. Union of India (2018) 10 SCC 1,
98
Chandrachud J re-iterated that equality demands equal protection
of the sexual orientation of every individual citing Justice
K.S.Puttaswamy v. Union of India. The relevant para of the
Supreme Court’s judgment by J. Chandrachud in Navtej Singh
Johar Vs. Union of India (2018) 10 SCC 1 is as follows:
“464. Puttaswamy rejected the "test of popular

acceptance" employed by this Court in Koushal and
affirmed that sexual orientation is a constitutionally
guaranteed freedom: (Puttaswamy case, SCC pp.
421-22, para 144)
144. The guarantee of constitutional rights

does not depend upon their exercise being
favourably regarded by majoritarian opinion.
The test of popular acceptance does not
furnish a valid basis to disregard rights which
are conferred with the sanctity of
constitutional protection. Discrete and insular
minorities face grave dangers of
discrimination for the simple reason that their
views, beliefs or way of life do not accord with
the "mainstream". Yet in a democratic
Constitution founded on the Rule of Law,
their rights are as sacred as those conferred
on other citizens to protect their freedoms
and liberties. Sexual orientation is an
essential attribute of privacy. Discrimination
99
against an individual on the basis of sexual
orientation is deeply offensive to the dignity
and self-worth of the individual. Equality
demands that the sexual orientation of each
individual in society must be protected on an
even platform. The right to privacy and the
protection of sexual orientation lie at the
core of the fundamental rights guaranteed by
Articles 14, 15 and 21 of the Constitution."
Rejecting the notion that the rights of the LGBT

community can be construed as illusory, the Court
held that the right to privacy claimed by sexual
minorities is a constitutionally entrenched right
(Puttoswamy case?, SCC p. 422, para 145)
“145. The rights of the lesbian, gay, bisexual

and transgender population cannot be
construed to be "so-called rights". The
expression "so-called" seems to suggest the
exercise of a liberty in the garb of a right
which is illusory. This is an inappropriate
construction of the privacy-based claims of
the LGBT population. Their rights are not "so-
called" but are real rights founded on sound
constitutional doctrine. They inhere in the
right to life. They dwell in privacy and dignity.
They constitute the essence of liberty and
100
freedom. Sexual orientation is an essential
component of identity. Equal protection
demands protection of the identity of every
individual without discrimination."
Kaul, J. concurring with the recognition of sexual

orientation as an aspect of privacy, noted that:
(Puttaswamy cases, SCC p. 635, para 647)
"647... The sexual orientation even within the four

walls of the house thus became an aspect of debate.
I am in agreement with the view of Dr. D.Y.
Chandrachud, J. who in paras 144 to 146 of his
judgment, states that the right of privacy cannot be
denied, even if there is a miniscule fraction of the
population which is affected. The majoritarian
concept does not apply to constitutional rights and
the courts are often called up on to take what may be
categorised as a non-majoritarian view, in the check
and balance of power envisaged under the
Constitution of India. One's sexual orientation is
undoubtedly an attribute of privacy."
With these observations by five of the nine Judges in

Puttaswamy, the basis on which Koushal upheld the
validity of Section 377 stands eroded and even
disapproved. dignity and self-worth of the
individual. Equality demands that the sexual
101
orientation of each individual in society must be
protected on an even platform. The right to privacy
and the protection of sexual orientation lie at the
core of the fundamental rights guaranteed by
Articles 14, 15 and 21 of the Constitution”
RIGHT OF QUEER PERSONS NOT TO SUFFER DISABILITIES

UNDER ARTICLE 15(2) DUE TO THE DENIAL OF THE RIGHT
TO MARRIAGE
QQ. A. Because without legal recognition of their marriage, queer

persons are also denied access to commercial establishments and
public spaces and there is a violation of their rights under Article
15(2). They do not have the entitlements of a marital partner in
privately accessed necessities and activities like insurance,
hospitalisation and booking of hotels. The legal recognition of
non-heterosexual marriages is imperative for them to access these
entitlements and ensure non-discrimination in all areas of life.
RR. B. The legal recognition of non-heterosexual marriages is imperative
for them to access the entitlements of other spouses and ensure

non-discrimination in all areas of life. The following list has
examples of benefits which are available to married partners, as
simply a result of being married, which will never be available to
non-heterosexual individuals. For example Section 39(7) of the
Insurance Laws (Amendment) Act, 2015, accords nominees who
are immediate family members such as spouse, parents or children
the status of beneficial nominee. If any of these persons are made
102
a nominee, the death benefit will be paid to these persons and
other legal heirs will have no claim over the money. Similarly,
Section 10A(4) of the Employees’ Compensation Act, 1923
allows the Commissioner under the Act to inform the dependents
of a deceased workman about the possibility of claiming
compensation. Section 2(1)(d) of the Employees’ Compensation
Act, 1923 defines “dependent” to include the surviving spouse.
SS. C. Further, discrimination of queer couples by private

establishments providing services should be held violative of
rights under Article 15(2) of the Constitution. In Indian Medical
Association v Union of India (2011) 7 SCC 179, the Supreme
Court on an examination of Constituent Assembly debates held
that “shops” under Article 15(2) should be interpreted broadly to
not just refer to physical shops, but also any provision of goods or
services in the market. The Supreme Court further held that the
private sector cannot conduct services in a manner that is
discriminatory. Article 15(2) can be interpreted to mean that such
establishments do not have to just refrain from discrimination, but
also make sure that their rules of access do not perpetuate social
disadvantages.
“186. The purport of Article 15 (2) can be gathered from the

Constituent Assembly debates. Babasaheb Ambedkar elucidated
on the same saying that: (CAD, Vol. 7, p.661)
"…To define the word `shop' in the most generic term one can
think of is to state that `shop' is a place where the owner is
103
prepared to offer his service to anybody who is prepared to go
there seeking his service. .... Certainly it will include anybody who
offers his services. I am using it in a generic sense. I should like
to point out therefore that the word `shop' used here is not used
in the limited sense of permitting entry. It is used in the larger
sense of requiring the services if the terms of service are agreed
to."
187. In as much as education, pursuant to TMA Pai, is an

occupation under sub-clause (g) of clause (1) of Article 19, and it
is a service that is offered for a fee that takes care of all the
expenses of the educational institution in rendering that service,
plus a reasonable surplus, and is offered to all those amongst the
general public, who are otherwise qualified, then such
educational institutions would also be subject to the discipline of
clause (2) of Article 15. In this regard, the purport of the above
exposition of clause (2) of Article 15, when read in the context
of egalitarian jurisprudence inherent in Articles 14, 15, 16 and
Article 38, and read with our national aspirations of
establishing a society in which Equality of status and
opportunity, and Justice, social, economic and political, would
imply that the private sector which offers such facilities ought
not to be conducting their affairs in a manner which promote
existing discriminations and disadvantages.
188. There are two potential interpretations of the use of the word
"only" in clause (2) of Article 1540. One could be an
interpretation that suggests that the particular private
establishment not discriminate on the basis of enumerated
104
grounds and not be worried about the consequences. Another
interpretation could be that the private establishment not just
refrain from the particular form of overt discrimination but also
ensure that the consequences of rules of access to such private
establishments do not contribute to the perpetration of the
unwarranted social disadvantages associated with the
functioning of the social, cultural and economic order. Whether
sub-clause (a) of clause (2) of Article 15 is self-executory or not
is irrelevant in the context of reservations. If the State does enact
"special provisions" for the advancement of socially and
educationally backward classes, it does so in order to prevent the
perpetuation of social and educational backwardness in certain
classes of people generation after generation.
189. If a publicly offered service follows a particular rule that

achieves the same or similar consequences as the proscribed
discrimination, and tends to perpetuate the effects of such
discrimination, then it would violate the principle of substantive
equality. In the case of admissions to colleges, it is an
acknowledged fact, in both TMA Pai, and in fact even by Bhandari
J., in his opinion in Ashoka Kumar Thakur, that the test of merit,
based on some qualifying examinations or a common entrance
test, actually is particularly prone to rewarding an individual who
has had access to better schools, family lives, social exposure and
means to coaching classes. This would mean that many of the
youngsters, who hail from disadvantaged backgrounds are
severely handicapped in demonstrating their actual talents. This
would be even more so in the case of Scheduled Castes and
105
Scheduled Tribes. Given that social and educational, background
of the parents, and of general community members, has an
important bearing on how well the youngsters learn and advance,
it would only mean that complete dependence on such tests which
do not discriminate and grade, in terms of real merit relative to
peers in similar circumstances, but on the basis of so called
absolute abilities, we would end up selecting more students from
better social and educational backgrounds, thereby foreclosing
or substantially truncating the possibility of individuals in such
disadvantaged groups from being able to gain access to a vital
element of modern life that grants dignity to the individuals, and
thereby to the group as a whole, both in this generation, and in
future generations.”
TT. D. In Vishaka v. State of Rajasthan (1997) 6 SCC 241, private and

public employers were held to the constitutional obligation of
providing a framework for protection against sexual harassment.
The state was recognised to have the constitutional duty to protect
individuals from sexual harassment in the workplace and due to
the void of legislation, the Supreme Court issued guidelines for
both private and public workplaces.
UU. E. To fulfil the guarantee of substantive equality under Article 15(2)

of the Constitution of India, queer individuals cannot be
discriminated in the provision of goods and services. The state has
the obligation to ensure that they are not excluded or socially
disadvantaged due to their gender or sexual orientation. In the
106
absence of any laws to enforce this protection, the court may
consider issuing guidelines to prevent such discrimination.
FOREIGN JUDGMENTS ON SAME SEX AND QUEER

MARRIAGES
VV. C. Because same-sex marriages have been granted legal recognition

by courts in various jurisdictions around the world. The Hon’ble
Supreme Court of India, in the case of NALSA Vs. Union of India
& Ors (2014) 5 SCC 438 (hereinafter referred to as the “NALSA
judgment”) relied upon various foreign judgments to highlight
that the principle of guarantee to equality and non-discrimination
on the basis of gender is gaining prominence in international law
and thus may be applied in India. The Hon’ble Supreme Court, in
the NALSA judgment, categorically stated that “…46. We have
referred exhaustively to the various judicial pronouncements and
legislations on the international arena to highlight the fact that
the recognition of “sex identity gender” of persons, and
“guarantee to equality and non-discrimination” on the ground of
gender identity or expression is increasing and gaining
acceptance in international law and, therefore, be applied in
India as well.”
(i) The Supreme Court of the United States, in the case of

Obergefell vs. Hodges 576 U.S. 644 (2015) granted legal
recognition to same sex marriages. As per the judgment, all
states in the US are now required to issue marriage licenses
to same sex couples and recognize same sex marriages
107
validly performed in other jurisdictions. While doing so, it
upheld several relevant principles which can be applied in
the context of India. Some of the principles, along with the
relevant excerpts from the judgment are as follows:
(a) The US Supreme Court held that the right to personal

choice regarding marriage is inherent in the concept of
individual autonomy and the right to privacy with
respect to this matter must be recognized as it is for
other family matters. The right to privacy has been held
to be a fundamental right by the Supreme Court of India
in Justice K.S.Puttaswamy vs. Union of India (2017)
10 SCC 1, wherein this US judgment was also referred
to and the application of the right to privacy with respect
to marriage was emphasized upon. The relevant excerpt
of the judgment by the US Supreme Court is as follows:
“A first premise of the Court’s relevant precedents

is that the right to personal choice regarding
marriage is inherent in the concept of individual
autonomy. This abiding connection between
marriage and liberty is why Loving invalidated
interracial marriage bans under the Due Process
Clause. See 388 U. S., at 12; see also Zablocki,
supra, at 384 (observing Loving held “the right to
marry is of fundamental importance for all
individuals”). Like choices concerning
contraception, family relationships, procreation,
and childrearing, all of which are protected by the
108
Constitution, decisions concerning marriage are
among the most intimate that an individual can
make. See Lawrence, supra. Indeed, the Court has
noted it would be contradictory “to recognize a right
of privacy with respect to other matters of family life
and not with respect to the decision to enter the
relationship that is the foundation of the family in
our society.” Zablocki, supra, at 386.”
(b) The US Supreme Court held that although it had already

invalidated laws which criminalized same sex intimacy
in one of its previous judgments, freedom did not end
there and that on its own did not achieve the full promise
of liberty. It is most respectfully submitted that on the
same premise, even though the Supreme Court of India
has decriminalized sexual intercourse between queer
persons and/ or those of the same sex, the fundamental
right to life and personal liberty guaranteed by Article
21 will be enforced in its completeness when all the
rights available to heterosexual couples are available to
queer couples, including the right to legal recognition of
marriage. The relevant para of the US Supreme Court
judgment is as follows:
“As this Court held in Lawrence, same-sex couples

have the same right as opposite-sex couples to enjoy
intimate association. Lawrence invalidated laws that
made samesex intimacy a criminal act. And it
acknowledged that “when sexuality finds overt
109
expression in intimate conduct with another person,
the conduct can be but one element in a personal
bond that is more enduring.” 539 U. S., at 567. But
while Lawrence confirmed a dimension of freedom
that allows individuals to engage in intimate
association without criminal liability, it does not
follow that freedom stops there. Outlaw to outcast
may be a step forward, but it does not achieve the
full promise of liberty.”
(c) The US Supreme Court held that a legally recognized

marriage was the source for various other rights and
privileges and that non-recognition of same-sex
marriages was resulted in denial of these rights to that
community. It is submitted that this applies to India as
well, since same-sex couples such as the Petitioner Nos.
1 and 2 are being denied of various rights due to non-
recognition of their marriages. The relevant para of the
judgment by the US Supreme Court held that:
“For that reason, just as a couple vows to support

each other, so does society pledge to support the
couple, offering symbolic recognition and material
benefits to protect and nourish the union. Indeed,
while the States are in general free to vary the
benefits they confer on all married couples, they
have throughout our history made marriage the
basis for an expanding list of governmental rights,
benefits, and responsibilities. These aspects of
110
marital status include: taxation; inheritance and
property rights; rules of intestate succession;
spousal privilege in the law of evidence; hospital
access; medical decision making authority; adoption
rights; the rights and benefits of survivors; birth and
death certificates; professional ethics rules;
campaign finance restrictions; workers’
compensation benefits; health insurance; and child
custody, support, and visitation rules. See Brief for
United States as Amicus Curiae 6–9; Brief for
American Bar Association as Amicus Curiae 8–29.
Valid marriage under state law is also a significant
status for over a thousand provisions of federal law.
See Windsor, 570 U. S., at ___ – ___ (slip op., at 15–
16). The States have contributed to the fundamental
character of the marriage right by placing that
institution at the center of so many facets of the legal
and social order.”
(d) The US Supreme Court in Obergefell v. Hodges 576 US

- (2015) stated that in its previous judgment in
Lawrence v. Texas 539 U.S. 558 (2003), it had drawn
upon principles of liberty and equality to decriminalise
private sexual conduct between gays and lesbians. The
court held that the same rationale as applied in the
Lawrence judgment would apply to same-sex marriages
and that the challenged laws abridged the central
precepts of equality and that the right to marry was a
111
fundamental right inherent in the liberty of the person.
The court then relied upon the Due Process and Equal
protection clauses of the fourteenth amendment to the
US Constitution and held that the state laws under
challenge were invalid to the extent that they excluded
same-sex couples from civil marriage on the same terms
and conditions as opposite sex couples. The Hon’ble
Supreme Court of India had also drawn upon the
fundamental rights to life and personal liberty and that
of equality to decriminalise sexual acts between persons
of the same sex, in Navtej Singh Johar Vs. Union of
India (2018) 10 SCC 1, just like the US Supreme Court
did in the Lawrence judgment. Hence, it is most
respectfully submitted that just as the US Supreme
Court in the case of Obergefell v. Hodges, drew a
parallel to its application of the rights to liberty and
equality in the Lawrence judgment to uphold legality of
same sex marriages on the basis of these rights, this
Hon’ble Court may draw a parallel to the application of
the fundamental rights of life and personal liberty and
right to equality by the Supreme Court in the Navtej
Singh Johar judgment and grant legal recognition to
same sex marriages in India to uphold these
fundamental rights, which are available to all persons
under Articles 14 and 21 of the Constitution of India. It
is pertinent to note that the right to marry a person of
one’s choice has been held to fall within the ambit of
Article 21 by the Hon’ble Supreme Court of India in a
112
catena of decisions (Shafin Jahan vs. Asokan K.M. and
Ors (2018) 16 SCC 368; Shakti Vahini Vs. Union of
India). The relevant paras of the judgment by the US
Supreme Court in Obergefell v. Hodges are as follows:
“In Lawrence the Court acknowledged the

interlocking nature of these constitutional
safeguards in the context of the legal treatment of
gays and lesbians. See 539 U. S., at 575. Although
Lawrence elaborated its holding under the Due
Process Clause, it acknowledged, and sought to
remedy, the continuing inequality that resulted from
laws making intimacy in the lives of gays and
lesbians a crime against the State. See ibid.
Lawrence therefore drew upon principles of liberty
and equality to define and protect the rights of gays
and lesbians, holding the State “cannot demean their
existence or control their destiny by making their
private sexual conduct a crime.” Id., at 578. This
dynamic also applies to same-sex marriage. It is now
clear that the challenged laws burden the liberty of
same-sex couples, and it must be further
acknowledged that they abridge central precepts of
equality. Here the marriage laws enforced by the
respondents are in essence unequal: same-sex
couples are denied all the benefits afforded to
opposite-sex couples and are barred from exercising
a fundamental right. Especially against a long
113
history of disapproval of their relationships, this
denial to same-sex couples of the right to marry
works a grave and continuing harm. The imposition
of this disability on gays and lesbians serves to
disrespect and subordinate them. And the Equal
Protection Clause, like the Due Process Clause,
prohibits this unjustified infringement of the
fundamental right to marry. See, e.g., Zablocki,
supra, at 383–388; Skinner, 316 U. S., at 541. These
considerations lead to the conclusion that the right
to marry is a fundamental right inherent in the
liberty of the person, and under the Due Process and
Equal Protection Clauses of the Fourteenth
Amendment couples of the same-sex may not be
deprived of that right and that liberty. The Court now
holds that same-sex couples may exercise the
fundamental right to marry. No longer may this
liberty be denied to them. Baker v. Nelson must be
and now is overruled, and the State laws challenged
by Petitioners in these cases are now held invalid to
the extent they exclude same-sex couples from civil
marriage on the same terms and conditions as
oppositesex couples.”
(e) The US Supreme Court, in Obergefell v. Hodges 576

US - (2015), held that the dynamic of the American
constitutional system was such that individuals need not
114
await legislative action before asserting a fundamental
right and that an individual could invoke a right to
constitutional protection when he or she was harmed,
even if the broader public disagreed and even if the
legislature refused to act. It is submitted that the same
principle applies to India, as there are a catena of
judgments where fundamental rights of individuals have
been upheld despite lack of legislation or majority
consensus on an issue and that the protection of
fundamental rights lies at the very core of the
Constitution. The relevant para of the judgment by the
US Supreme Court is as follows:
“The dynamic of our constitutional system is that

individuals need not await legislative action before
asserting a fundamental right. The Nation’s courts
are open to injured individuals who come to them to
vindicate their own direct, personal stake in our
basic charter. An individual can invoke a right to
constitutional protection when he or she is harmed,
even if the broader public disagrees and even if the
legislature refuses to act. The idea of the
Constitution “was to withdraw certain subjects from
the vicissitudes of political controversy, to place
them beyond the reach of majorities and officials and
to establish them as legal principles to be applied by
the courts.” West Virginia Bd. of Ed. v. Barnette, 319
U. S. 624, 638 (1943). This is why “fundamental
115
rights may not be submitted to a vote; they depend
on the outcome of no elections.”
(ii) The Constitutional Court of South Africa, in the case of

Minister of Home Affairs & Anr. vs. Fourie & Anr. with
Doctors For Life International (first amicus curiae),
John Jackson Smyth (second amicus curiae) and
Marriage Alliance of South Africa (third amicus curiae)
CCT 60/04, declared that the common law definition of
marriage was inconsistent with the Constitution and invalid
to the extent that it did not permit queer couples to enjoy
the status and the benefits coupled with responsibilities
available to heterosexual couples. The court further
declared that the omission of the words “or spouse” after
the words “or husband” in Section 30(1) of the Marriage
Act, in South Africa was inconsistent with the Constitution.
The Marriage Act was declared invalid to the extent of this
inconsistency. The court directed the Parliament of South
Africa to frame necessary legislation to grant legal
recognition to non heterosexual marriages. It suspended the
declaration of invalidity for a period of 12 months and held
that if the Parliament would not correct the defects within
this period, Section 30(1) of the Marriage Act 25 of 1961
will forthwith be read as including the words “or spouse”
after the words “or husband” as they appear in the marriage
formula. The relevant para of the judgment wherein the
order has been made is as follows:
“THE ORDER
116
…
2. In the matter between the Lesbian and Gay
Equality Project and Eighteen Others and the
Minister of Home Affairs, the Director General of
Home Affairs and the Minister of Justice and
Constitutional Development, CCT 10/05, the
following order is made:
a) The application by the Lesbian and Gay Equality
Project and Eighteen Others for direct access is
granted.
b) The common law definition of marriage is
declared to be inconsistent with the Constitution and
invalid to the extent that it does not permit same-sex
couples to enjoy the status and the benefits coupled
with responsibilities it accords to heterosexual
couples.
c) The omission from section 30(1) of the Marriage
Act 25 of 1961 after the words “or husband” of the
words “or spouse” is declared to be inconsistent
with the Constitution, and the Marriage Act is
declared to be invalid to the extent of this
inconsistency.
d) The declarations of invalidity in paragraphs (b)
and (c) are suspended for 12 months from the date of
this judgment to allow Parliament to correct the
defects.
e) Should Parliament not correct the defects within
this period, Section 30(1) of the Marriage Act 25 of
117
1961 will forthwith be read as including the words
“or spouse” after the words “or husband” as they
appear in the marriage formula.
f) The Minister and Director-General of Home
Affairs and the Minister of Justice and
Constitutional Development are ordered to pay the
applicants’ costs, including the costs of two counsel
in the Constitutional Court.”
There were a number of relevant principles upheld by the

judgment, some of which, along with the excerpts from the
judgment, are as follows:
(a) The Constitutional Court of South Africa held

that a legally recognised marriage is the only
source of various socio-economic benefits such
as the right to inheritance, medical insurance
coverage, adoption, access to wrongful death
claims, spousal benefits, bereavement leave, tax
advantages and post-divorce rights. Hence, by
denying same sex-couples the right to legal
recognition of marriage, several other rights are
being denied to them. It is submitted that the same
rationale may be applied in the context of India.
The relevant para of the judgment is as follows:
“[70] Marriage law thus goes well beyond its earlier

purpose in the common law of legitimising sexual
118
relations and securing succession of legitimate heirs
to family property. And it is much more than a mere
piece of paper. As the SALRC Paper comments, the
rights and obligations associated with marriage are
vast. Besides other important purposes served by
marriage, as an institution it was (at the time the
SALRC Paper was produced) the only source of
socio-economic benefits such as the right to
inheritance, medical insurance coverage, adoption,
access to wrongful death claims, spousal benefits,
bereavement leave, tax advantages and post-divorce
rights.
(b) The constitutional court of South Africa held that

exclusion of same-sex couples from legal
recognition of marriages represented a harsh and
oblique statement that same-sex couples were
outsiders and that their need for affirmation and
protection of their intimate relations as human
beings is somehow less than that of heterosexual
couples. The court further held that such
exclusion reinforced the flawed notion that same
sex couples were biological oddities and misfits.
The relevant para of the judgment is as follows:
“[71] The exclusion of same-sex couples from the

benefits and responsibilities of marriage,
accordingly, is not a small and tangential
119
inconvenience resulting from a few surviving
relics of societal prejudice destined to evaporate
like the morning dew. It represents a harsh if
oblique statement by the law that same-sex
couples are outsiders, and that their need for
affirmation and protection of their intimate
relations as human beings is somehow less than
that of heterosexual couples. It reinforces the
wounding notion that they are to be treated as
biological oddities, as failed or lapsed human
beings who do not fit into normal society, and, as
such, do not qualify for the full moral concern
and respect that our Constitution seeks to secure
for everyone. It signifies that their capacity for
love, commitment and accepting responsibility is
by definition less worthy of regard than that of
heterosexual couples.
(c) The constitutional court of South Africa held that

given the centrality of marriage in culture, denial
of the right to be legally married negates their
right to “self-definition” in the most profound
way. The relevant para of the judgment is as
follows:
“[72] … It follows that, given the centrality

attributed to marriage and its consequences in
our culture, to deny same-sex couples a choice in
120
this respect is to negate their right to self-
definition in a most profound way.”
(d) While discussing the lack of legal recourses

available to same-sex couples in the event of
marital problems due to non-recognition of their
marriages, the Constitutional Court of South
Africa made some interesting observations. The
Court observed that slavery, colonialism,
prohibition of interracial marriages and overt
male domination were all once sanctioned by
religion and imposed by law. The court noted that
slavery and colonialism are today regarded with
total disdain and prohibition of interracial
marriages with shame and embarrassment. It is
submitted that like South Africa, India was once
a country under colonial rule, with several
archaic, discriminatory, archaic laws and
practices, exercised both against Indians by the
colonial rulers and within Indian society on the
basis of caste and creed. Like South Africa, upon
attaining freedom from colonial rule, India, as a
nation managed to break the shackles that
impeded her progress and embrace a Constitution
that guaranteed equality and non-discrimination
to all persons. The observation of the
Constitutional Court of South Africa, regarding
evolution of law and change in a progressive
121
direction, applies to India as well. It is most
respectfully submitted that this Hon’ble Court
may thus apply the same principles and grant
legal recognition to same sex marriages, in order
to evolve law for the facilitation of social justice.
The relevant para of the judgment by the
Constitutional Court of South Africa is as
follows:
“[74] The law should not turn its back on any

persons requiring legal support in times of family
breakdown. It should certainly not do so on a
discriminatory basis; the antiquity of a prejudice
is no reason for its survival. Slavery lasted for a
century and a half in this country, colonialism for
twice as long, the prohibition of interracial
marriages for even longer, and overt male
domination for millennia. All were based on
apparently self-evident biological and social
facts; all were once sanctioned by religion and
imposed by law; the first two are today regarded
with total disdain, and the third with varying
degrees of denial, shame or embarrassment.
Similarly, the fact that the law today embodies
conventional majoritarian views in no way
mitigates its discriminatory impact. It is precisely
those groups that cannot count on popular
support and strong representation in the
122
legislature that have a claim to vindicate their
fundamental rights through application of the Bill
of Rights.
(e) The Constitutional Court of South Africa held

that excluding same sex couples from legal
recognition of same sex marriages was a denial of
equal protection of law that was guaranteed by
their Constitution. It is most respectfully
submitted that this Hon’ble Court may thus apply
the same rationale in the present case and declare
that not granting legal recognition of marriage to
same sex couples under Indian law constitutes a
denial of the right to equality and equal protection
of law guaranteed to all persons by Article 14 of
the Constitution of India. The relevant para of the
judgment by the Constitutional Court of South
Africa is as follows:
“Equal protection and unfair discrimination
[75] It is convenient at this stage to restate the

relevant provisions of the Constitution. Section
9(1) provides:
“Everyone is equal before the law and has the
right to equal protection and benefit of the law.”
It is clear that the exclusion of same-sex couples

from the status, entitlements and responsibilities
123
accorded to heterosexual couples through
marriage, constitutes a denial to them of their
right to equal protection and benefit of the law.”
(f) The South African Court in its judgment held that

unfair discrimination against same sex couples
did not flow from any express exclusion in the
Marriage Act. The problem was that the Marriage
Act simply made no provision for them to have
their unions recognized and protected in the same
manner as heterosexual couples. It was as if they
did not exist as far as the law was concerned. It is
most respectfully submitted that this Hon’ble
Court may thus apply the same principle to the
present case, where there is no express exclusion
of same-sex marriages in the impugned
provisions and there is no recognition of the same
either. The law is silent on the marital status of
same sex couples and treats them as non-existent,
thus presenting the need to accord their marriages
legal status. The relevant para of the judgment by
the Constitutional Court of South Africa is as
follows:
“[77] Some minorities are visible, and suffer

discrimination on the basis of presumed
characteristics of the group with which they are
identified. Other minorities are rendered
invisible inasmuch as the law refuses them the
124
right to express themselves as a group with
characteristics different from the norm. In the
present matter, the unfair discrimination
against same-sex couples does not flow from
any express exclusion in the Marriage Act. The
problem is that the Marriage Act simply makes
no provision for them to have their unions
recognised and protected in the same way as it
does for those of heterosexual couples. It is as if
they did not exist as far as the law is concerned.
They are implicitly defined out of contemplation
as subjects of the law.”
(g) The Constitutional Court of South Africa, in its

judgment, upheld a very relevant principle. It
held that merely protecting same-sex couples
from punishment or stigmatisation was not
sufficient. The court held that same-sex couples
were no longer seeking the right to be left alone
or non-interference from the State. They were
seeking the right to be acknowledged as equals
and be embraced with dignity by law. The court
held that the law in the past failed to secure for
same-sex couples the dignity, status, benefits and
responsibilities that it accorded to heterosexual
couples. The court further held that although
considerable progress had been made in specific
cases through constitutional interpretation, and,
125
by means of legislative intervention, the default
position of gays and lesbians was still one of
exclusion and marginalisation. The court held
that the law and relevant statutes in South Africa
continued to deny to same-sex couples equal
protection and benefit of the law, resulting in
them being subjected to unfair discrimination by
the state in conflict with the Constitution. It is
most respectfully submitted that the same
rationale may be applied by this Hon’ble Court in
the present case. The Hon’ble Supreme Court of
India, vide its landmark judgment in the case of
Navtej Singh Johar Vs. Union of India (2018)
10 SCC 1, has already decriminalized
homosexuality. The Petitioners are now seeking
that this Hon’ble Court go a step further and
acknowledge LGBTQIA+ persons as equals and
members of society, by granting legal recognition
to their marriages, so that they can avail the same
status, benefits and carry out the same
responsibilities that heterosexual couples in India
can. The relevant para of the judgment by the
Constitutional Court of South Africa is as
follows:
“[78] Sections 9(1) and 9(3) cannot be read as

merely protecting same-sex couples from
punishment or stigmatisation. They also go
126
beyond simply preserving a private space in
which gay and lesbian couples may live together
without interference from the state. Indeed, what
the applicants in this matter seek is not the right
to be left alone, but the right to be acknowledged
as equals and to be embraced with dignity by the
law. Their love that was once forced to be
clandestine, may now dare openly to speak its
name. The world in which they live and in which
the Constitution functions, has evolved from
repudiating expressions of their desire to
accepting the reality of their presence, and the
integrity, in its own terms, of their intimate life.
Accordingly, taking account of the decisions of
this Court, and bearing in mind the symbolic and
practical impact that exclusion from marriage
has on same-sex couples, there can only be one
answer to the question as to whether or not such
couples are denied equal protection and
subjected to unfair discrimination. Clearly, they
are, and in no small degree. The effect has been
wounding and the scars are evident in our society
to this day. By both drawing on and reinforcing
discriminatory social practices, the law in the
past failed to secure for same-sex couples the
dignity, status, benefits and responsibilities that
it accords to heterosexual couples. Although
considerable progress has been made in specific
127
cases through constitutional interpretation, and,
as will be seen, by means of legislative
intervention, the default position of gays and
lesbians is still one of exclusion and
marginalisation. The common law and section
30(1) of the Marriage Act continue to deny to
same-sex couples equal protection and benefit of
the law, in conflict with section 9(1) of the
Constitution, and taken together result in same-
sex couples being subjected to unfair
discrimination by the state in conflict with section
9(3) of the Constitution.”
(iii) The Supreme Court, in the case of Navtej Singh Johar vs.
Union of India, relied upon a decision of the Supreme
Court of Nepal in the case of Sunil Babu Pant vs. Nepal
Government, wherein it was held, in the context of same-
sex marriages that one adult had the right to enter into
marital relations with another adult wilfully. The Supreme
Court of Nepal directed the Nepalese government to enact
new legislation or amend existing legislation to ensure that
persons of all sexual orientations and gender identities
could enjoy equal rights.
(iv) The Supreme Court of India, in the case of Navtej Singh

Johar vs. Union of India (2018) 10 SCC 1, also cited a
decision of the European Court of Human Rights in the case
of Oliari Vs. Italy 276 [2015] ECHR 716 277, wherein it
128
was affirmed that same-sex couples “are in need of legal
recognition and protection of their relationship.” The
ECtHR concluded that gay couples are equally capable of
entering into stable and committed relationships in the
same way as heterosexual couples. The ECtHR examined
the domestic context in Italy, and noted a clear gap between
the “social reality of the applicants”, who openly live their
relationship, and the law, which fails to formally recognize
same-sex partnerships. The ECtHR held that in the absence
of any evidence of a prevailing community interest in
preventing legal recognition of same-sex partnerships,
Italian authorities “have overstepped their margin of
appreciation and failed to fulfil their positive obligation to
ensure that the applicants have available a specific legal
framework providing for the recognition and protection of
their same-sex unions.”
(v) The global trend towards the right to marry was taken
cognizance of, while rendering her judgment, by Indu
Malhotra J in her judgment in Johar (supra) as follows:
“631. The trend of decriminalizing anti-sodomy laws world

over has gained currency during the past few decades since
such laws have been recognised to be violative of human
rights. In 2017, the International Lesbian, Gay, Bisexual,
Trans and Intersex Association noted in its Annual State
Sponsored Homophobia Report that 124 countries no
129
longer penalise homosexuality. The change in laws in these
countries was given effect to, either through legislative
amendments to the statutory enactments, or by way of court
judgments. Relationships between same-sex couples have
been increasingly accorded protection by States across the
world. As per the aforesaid Report, a total of 24 countries
now allow same-sex couples to marry, while 28 countries
legally recognise partnerships between same-sex couples.
Several countries have enacted enabling legislations which
protect LGBT persons from discrimination, and allow them
to adopt children. For instance, the United Kingdom now
outlaws discrimination in employment, education, social
protection and housing on the ground of sexual orientation.
Marriage between same-sex couples have been recognised
in England and Wales.”
INTERNATIONAL LAW AND QUEER RIGHTS
WW. A. Because international law prevents discrimination on the basis of

sexual orientation and recommends that states legally recognize
same sex marriages, inter alia:
(i) The United Nations General Assembly (UNGA) released a

“Report of the Independent Expert on protection against
violence and discrimination based on sexual orientation
and gender identity A/HRC/35/36” dated 19th April, 2017.
The report states:
130
“20…The genesis of human rights protection after the
Second World War was the Universal Declaration of
Human Rights, of 1948. There are now nine core
international human rights treaties, complemented by
various protocols. All of them interrelate with the issue
of sexual orientation and gender identity, to a lesser or
greater extent. For instance, the right to be free from
discrimination is propounded in article 2 of the
Universal Declaration of Human Rights and in all
human rights treaties. Article 2 of the International
Covenant on Civil and Political Rights stipulates:
“Each State Party to the present Covenant
undertakes to respect and to ensure to all individuals
within its territory and subject to its jurisdiction the
rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion,
national or social origin, property, birth or other
status.
21. Other provisions (e.g. article 7 of the Universal

Declaration of Human Rights and article 26 of the
International Covenant on Civil and Political
Rights) reaffirm the right to equality before the law
and equal protection of the law without
discrimination. The stricture against discrimination
was deliberated upon by the Human Rights
Committee in regard to a seminal case, Toonen v.
131
Australia, that concerned the presence of a local law
that prohibited same-sex relations. The Committee
found that the local law in question violated article
17 of the Covenant in regard to the right to privacy,
and that the reference to “sex” in article 2 (1) (as
well as in art. 26) covered sexual orientation.
22. Under the International Covenant on Economic,

Social and Cultural Rights, the monitoring
committee has affirmed that the right to non-
discrimination guaranteed by the Covenant includes
sexual orientation, gender identity and sex
characteristics. Under the Convention on the
Elimination of All Forms of Discrimination against
Women and the Convention on the Rights of the
Child, the monitoring committees have issued
general comments and have made recommendations
to States covering respect for sexual orientation and
gender identity.
…
32. A sample of recent constructive practices can be
cited. A number of countries on every continent have
seen reforms of antiquated and obstructive laws and
policies, even though the progress is not always
universal. Many South Asian countries and countries
in other regions uphold the rights of transgender
people, even where they have difficulty in accepting
the rights of gays, lesbians and bisexuals. Same-sex
132
couples are now allowed to marry officially in a
number of countries, such as Canada, the United
States of America, and a range of countries in
Europe and Latin America. In 2016, a top court in
Belize declared an old law, which had prohibited
same-sex relations, to be unconstitutional.
Seychelles reformed its law similarly on this front.
In 2017, New Zealand agreed to expunge the
criminal record of persons criminalized by the
colonial law which had forbidden same-sex
relations (the law itself having been abrogated a
while ago). Germany also moved to annul Nazi-era
homosexuality convictions (about 42,000 such
convictions had been made under the Third Reich,
under an old provision of the Penal Code (art. 175))
and to offer compensation.
A perusal of the excerpts of the report cited above indicate that

the United Nations and other international organizations are
taking measures to combat discrimination on the grounds of
sexual orientation and are encouraging States to legally
recognize same sex marriages.
(ii) The Inter American Court of Human Rights (“IACtHR”),

upon being requested by the Republic of Costa Rica gave
Advisory Opinion Oc-24/17 Of November 24, 2017, titled
“Gender Identity, And Equality And Non-Discrimination
Of Same-Sex Couples State Obligations Concerning
133
Change Of Name, Gender Identity, And Rights Derived
From A Relationship Between Same-Sex Couples
(Interpretation And Scope Of Articles 1(1), 3, 7, 11(2), 13,
17, 18 And 24, In Relation To Article 1, Of The American
Convention On Human Rights)”. In this Opinion, it stated
that in several resolutions adopted since 2008, the OAS
General Assembly has stated that LGBTQIA+ persons are
subject to various forms of violence and discrimination
based on the perception of their sexual orientation and
gender identity or expression, and has resolved to condemn
acts of violence, human rights violations and all forms of
discrimination on the basis of sexual orientation and
gender identity or expression. As per the Opinion, these
resolutions are, “Cf. OAS, General Assembly resolutions:
AG/RES. 2908 (XLVII-O/17), Promotion and protection of
human rights, June 21, 2017; AG/RES. 2887 (XLVI-O/16),
Promotion and protection of human rights, June 14, 2016;
AG/RES. 2863 (XLIV-O/14), Human Rights, Sexual
Orientation, and Gender Identity and Expression, June 5,
2014; AG/RES. 2807 (XLIII-O/13) corr.1, Human Rights,
Sexual Orientation, and Gender Identity and Expression,
June 6, 2013; AG/RES. 2721 (XLII-O/12), Human Rights,
Sexual Orientation, and Gender Identity, June 4, 2012;
AG/RES. 2653 (XLI-O/11), Human Rights, Sexual
Orientation, and Gender Identity, June 7, 2011; AG/RES.
2600 (XL-O/10), Human Rights, Sexual Orientation, and
Gender Identity, June 8, 2010; AG/RES. 2504 (XXXIX-
O/09), Human Rights, Sexual Orientation, and Gender
134
Identity, June 4, 2009, and AG/RES. 2435 (XXXVIII-O/08),
Human Rights, Sexual Orientation, and Gender Identity,
June 3, 2008.”
The relevant observations and findings of the advisory

opinion by the ICAtHR are as follows:
(a) The ICAtHR, in its advisory opinion, referred to its

judgment in Cf. Case of Duque v. Colombia, of 2016,
wherein it had made observations on the consequences of
the failure of official recognition of relationships between
persons of the same sex.
(b) The ICAtHR in its Advisory Opinion also referred to Para

68 of the Report of the Office of the United Nations High
Commissioner for Human Rights (“UNHCR”), titled
“Discrimination And Violence Against Individuals
Based On Their Sexual Orientation And Gender
Identity, A/HRC/29/23”, dated 4 May 2015, wherein the
UNHCHR has indicated that lack of official recognition
results in “same-sex partners being treated unfairly by
private actors, including health-care providers and
insurance companies.”
(c) The ICAtHR in its advisory opinion said that States must
refrain from taking actions that are directly or indirectly
aimed at creating situations of de jure or de facto
135
discrimination and cited para 110 of its decision in the
Case of Flor Freire v. Ecuador.
(d) The ICAtHR in its advisory opinion stated that as per its
jurisprudence, the fundamental principle of equality and
non-discrimination has entered the domain of ius cogens
in international law.
(e) The ICAtHR concluded by deciding that:-
“7. The State must recognize and ensure all the rights
derived from a family relationship between same-sex
couples in accordance with the provisions of Articles
11(2) and 17(1) of the American Convention, as
established in paragraphs 200 to 218.”
“8. Under Articles 1(1), 2, 11(2), 17 and 24 of the

Convention, States must ensure full access to all the
mechanisms that exist in their domestic laws, including
the right to marriage, to ensure the protection of the
rights of families formed by same-sex couples, without
discrimination in relation to those that are formed by
heterosexual couples, as established in paragraphs 200
to 228.”
THE TRANSFORMATIVE CONSTITUTION OF INDIA
XX. A. Because the Constitution is a transformative, living document. It

must be interpreted to uphold and protect fundamental rights of
136
persons as per changing times. It can thus be interpreted by this
Hon’ble Court in a manner so as to prevent discrimination against
same sex couples, by granting legal recognition to their marriages.
The Supreme Court of India, in the case of Navtej Singh Johar
vs. Union of India (2018) 10 SCC 1, discussed the concept of
“transformative constitutionalism” and relied upon a number of
its own previous judgments to hold that the Constitution is an
“organic charter of progressive rights”. The relevant paras of the
judgment in the Navtej Singh Johar case are as follows:
“G. The Constitution – an organic charter of progressive

rights
93. A democratic Constitution like ours is an organic and

breathing document with senses which are very much alive
to its surroundings, for it has been created in such a
manner that it can adapt to the needs and developments
taking place in the society. It was highlighted by this Court
in the case of Chief Justice of Andhra Pradesh and others
v. L.V.A. Dixitulu and others that the Constitution is a
living, integrated organism having a soul and
consciousness of its own and its pulse beats, emanating
from the spinal cord of its basic framework, can be felt all
over its body, even in the extremities of its limbs.
94. In Saurabh Chaudri and others v. Union of India and

others35, it was observed:-
"Our Constitution is organic in nature, being a living

organ, it is ongoing and with the passage of time, law
137
must change. Horizons of constitutional law are
expanding."
95. Thus, we are required to keep in view the dynamic

concepts inherent in the Constitution that have the
potential to enable and urge the constitutional courts to
beam with expansionism that really grows to adapt to the
ever-changing circumstances without losing the identity of
the Constitution. The idea of identity of the individual and
the constitutional legitimacy behind the same is of immense
significance. Therefore, in this context, the duty of the
constitutional courts gets accentuated. We emphasize on
the role of the constitutional courts in realizing the evolving
nature of this living instrument. Through its dynamic and
purposive interpretative approach, the judiciary must
strive to breathe life into the Constitution and not render
the document a collection of mere dead letters. The
following observations made in the case of Ashok Kumar
Gupta and another v. State of U.P. and others further
throws light on this role of the courts:-
"Therefore, it is but the duty of the Court to supply

vitality, blood and flesh, to balance the competing
rights by interpreting the principles, to the language
or the words contained in the living and organic
Constitution, broadly and liberally."
96. The rights that are guaranteed as Fundamental Rights

under our Constitution are the dynamic and timeless rights
138
of 'liberty' and 'equality' and it would be against the
principles of our Constitution to give them a static
interpretation without recognizing their transformative and
evolving nature. The argument does not lie in the fact that
the concepts underlying these rights change with the
changing times but the changing times illustrate and
illuminate the concepts underlying the said rights. In this
regard, the observations in Video Electronics Pvt. Ltd. and
another v. State of Punjab and another are quite
instructive:-
"Constitution is a living organism and the latent

meaning of the expressions used can be given effect
to only if a particular situation arises. It is not that
with changing times the meaning changes but
changing times illustrate and illuminate the meaning
of the expressions used. The connotation of the
expressions used takes its shape and colour in
evolving dynamic situations."
97. Our Constitution fosters and strengthens the spirit of

equality and envisions a society where every person enjoys
equal rights which enable him/her to grow and realize
his/her potential as an individual. This guarantee of
recognition of individuality runs through the entire length
and breadth of this dynamic instrument. The Constitution
has been conceived of and designed in a manner which
acknowledges the fact that 'change is inevitable'. It is the
duty of the courts to realize the constitutional vision of
139
equal rights in consonance with the current demands and
situations and not to read and interpret the same as per the
standards of equality that existed decades ago. The
judiciary cannot remain oblivious to the fact that the
society is constantly evolving and many a variation may
emerge with the changing times. There is a constant need
to transform the constitutional idealism into reality by
fostering respect for human rights, promoting inclusion of
pluralism, bringing harmony, that is, unity amongst
diversity, abandoning the idea of alienation or some
unacceptable social notions built on medieval egos and
establishing the cult of egalitarian liberalism founded on
reasonable principles that can withstand scrutiny.
Transformative Constitutionalism and the Rights of

LGBTQIA+ Community
107. For understanding the need of having a constitutional

democracy and for solving the million dollar question as to
why we adopted the Constitution, we perhaps need to
understand the concept of transformative constitutionalism
with some degree of definiteness. In this quest of ours, the
ideals enshrined in the Preamble to our Constitution would
be a guiding laser beam. The ultimate goal of our
magnificent Constitution is to make right the upheaval
which existed in the Indian society before the adopting of
the Constitution. The Court in State of Kerala and another
140
v. N.M. Thomas and others 41 observed that the Indian
Constitution is a great social document, almost
revolutionary in its aim of transforming a medieval,
hierarchical society into a modern, egalitarian democracy
and its provisions can be comprehended only by a spacious,
social- science approach, not by pedantic, traditional
legalism. The whole idea of having a Constitution is to
guide the nation towards a resplendent future. Therefore,
the purpose of having a Constitution is to transform the
society for the better and this objective is the fundamental
pillar of transformative constitutionalism. 41 AIR 1976 SC
490
108. The concept of transformative constitutionalism has at

its kernel a pledge, promise and thirst to transform the
Indian society so as to embrace therein, in letter and spirit,
the ideals of justice, liberty, equality and fraternity as set
out in the Preamble to our Constitution. The expression
‗transformative constitutionalism‘ can be best understood
by embracing a pragmatic lens which will help in
recognizing the realities of the current day. Transformation
as a singular term is diametrically opposed to something
which is static and stagnant, rather it signifies change,
alteration and the ability to metamorphose. Thus, the
concept of transformative constitutionalism, which is an
actuality with regard to all Constitutions and particularly
so with regard to the Indian Constitution, is, as a matter of
141
fact, the ability of the Constitution to adapt and transform
with the changing needs of the times.
109. It is this ability of a Constitution to transform which

gives it the character of a living and organic document. A
Constitution continuously shapes the lives of citizens in
particular and societies in general. Its exposition and
energetic appreciation by constitutional courts constitute
the lifeblood of progressive societies. The Constitution
would become a stale and dead testament without dynamic,
vibrant and pragmatic interpretation. Constitutional
provisions have to be construed and developed in such a
manner that their real intent and existence percolates to all
segments of the society. That is the raison d'etre for the
Constitution.
110. The Supreme Court as well as other constitutional

courts have time and again realized that in a society
undergoing fast social and economic change, static judicial
interpretation of the Constitution would stultify the spirit of
the Constitution. Accordingly, the constitutional courts,
while viewing the Constitution as a transformative
document, have ardently fulfilled their obligation to act as
the sentinel on qui vive for guarding the rights of all
individuals irrespective of their sex, choice and sexual
orientation.
…
142
122. The principle of transformative constitutionalism
also places upon the judicial arm of the State a duty to
ensure and uphold the supremacy of the Constitution,
while at the same time ensuring that a sense of
transformation is ushered constantly and endlessly in the
society by interpreting and enforcing the Constitution as
well as other provisions of law in consonance with the
avowed object. The idea is to steer the country and its
institutions in a democratic egalitarian direction where
there is increased protection of fundamental rights and
other freedoms. It is in this way that transformative
constitutionalism attains the status of an ideal model
imbibing the philosophy and morals of constitutionalism
and fostering greater respect for human rights. It ought
to be remembered that the Constitution is not a mere
parchment; it derives its strength from the ideals and
values enshrined in it. However, it is only when we adhere
to constitutionalism as the supreme creed and faith and
develop a constitutional culture to protect the
fundamental rights of an individual that we can preserve
and strengthen the values of our compassionate
Constitution.
...
Q. Conclusions
268. In view of the aforesaid analysis, we record our

conclusions in seriatim:-
143
…
268.4 The primary objective of having a constitutional

democracy is to transform the society progressively and
inclusively. Our Constitution has been perceived to be
transformative in the sense that the interpretation of its
provisions should not be limited to the mere literal meaning
of its words; instead they ought to be given a meaningful
construction which is reflective of their intent and purpose
in consonance with the changing times. Transformative
constitutionalism not only includes within its wide
periphery the recognition of the rights and dignity of
individuals but also propagates the fostering and
development of an atmosphere wherein every individual is
bestowed with adequate opportunities to develop socially,
economically and politically. Discrimination of any kind
strikes at the very core of any democratic society. When
guided by transformative constitutionalism, the society is
dissuaded from indulging in any form of discrimination so
that the nation is guided towards a resplendent future.”
YY. B. Because in the process of rights-based transformation, a variety

of voluntary relationships of love, care and family may be
recognised. In NALSA vs. Union of India (2018) 10 SCC, the
Hon’ble Supreme Court recognised the social and cultural
identities of the Hijra, Arvani and Jogappa communities. These
communities have their own established institutions of family,
household and kinship that are not based on marriage, but rather
on their own institutionalised practices. Several other queer
144
communities are based on relationships of love, belonging and
shared experiences that reject the traditional cisgender
heterosexual patriarchal family. Conceptions of family and
kinship under law, hence should recognise communities of people
who may vary in their personal identities but live together in a
shared experience of queerness and love to not participate in the
compulsory heteronormative family. The practices and
relationships of queer people deserve to be recognised, as much
as heterosexual relationships are, in society and in law. By the
same token, voluntary relationships of marriage between same
sex and queer persons must be recognised under Articles 14, 15,
19 and 21.
ZZ. C. Because our courts have time and again cast a positive obligation
upon states to take active measures to protect and ensure the
fulfilment of the right to life and personal liberty under Article 21.
In the case of Vishaka vs. State of Rajasthan AIR 1997 6 SCC
241, the Supreme Court went a step further and held that since
domestic law on sexual harassment of women at the workplace
was absent, effective measures with respect to the same were to
be put in place and implemented to protect fundamental rights
under Articles 14, 15 19(1)(g) and 21 of the Constitution for
which the contents of international conventions and norms were
significant, by placing reliance on Article 51(c) of the
Constitution. The court further held that the Parliament had the
power to enact laws for implementing international conventions
and norms by virtue of Article 253 read with Entry 14 of the
Union List in Seventh Schedule of the Constitution. The court
145
also referred to Article 73 of the Constitution which provides that
the executive power of the Union shall extend to the matters with
respect to which the Parliament has power to make laws and held
that till the Parliament legislated on the issue of sexual harassment
at the workplace, the executive power of the Union could be
exercised to curb the evil. The relevant portion of the judgment is
as follows:
“7. In the absence of domestic law occupying the field, to

formulate effective measures to check the evil of sexual
harassment of working women at all work places, the
contents of International Conventions and norms are
significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human
dignity in Articles 14, 15 19(1)(g) and 21 of the
Constitution and the safeguards against sexual harassment
implicit therein. Any International Convention not
inconsistent with the fundamental rights and in harmony
with its spirit must be read into these provisions to enlarge
the meaning and content thereof, to promote the object of
the constitutional guarantee. This is implicit from Article
51(c) and enabling power of the Parliament to enact laws
for implementing the International Conventions and norms
by virtue of Article 253 read with Entry 14 of the Union List
in Seventh Schedule of the Constitution. Article 73 also is
relevant. It provides that the executive power of the Union
shall extend to the matters with respect to which
Parliament has power to make laws. The executive power
146
of the Union is, therefore, available till the parliament
enacts to expressly provide measures needed to curb the
evil.”
Similarly, in the case of Ms. S. Sushma & Anr. Vs.

Commissioner of Police, Greater Chennai Police & Ors. W.P.
No. 7284 of 2021, the Hon’ble High Court of Madras, vide a
recent order dated 7th June, 2021 issued a slew of
guidelines/directions to the police, Union Government, State
Governments as well as certain ministries/departments to protect
same-sex couples from discrimination, harassment and to provide
them support.
AAA. D. Because the Supreme Court, in the case of Navtej Singh Johar
vs. Union of India (2018) 10 SCC 1, held that that the
constitutional courts have to embody in their approach a
telescopic vision wherein they inculcate the ability to be futuristic
and do not procrastinate till the day when the number of citizens
whose fundamental rights are affected and violated grow in
figures. The Court also held that it was not relevant that the
LGBTQIA+ community, being discriminated against, was small,
rather it was necessary to strike down any discriminatory law. The
relevant paras of the judgment are as follows:
“181. The observation made in Suresh Koushal (supra)

that gays, lesbians, bisexuals and transgenders constitute a
very minuscule part of the population is perverse due to the
very reason that such an approach would be violative of the
147
equality principle enshrined under Article 14 of the
Constitution. The mere fact that the percentage of
population whose fundamental right to privacy is being
abridged by the existence of Section 377 in its present form
is low does not impose a limitation upon this Court from
protecting the fundamental rights of those who are so
affected by the present Section 377 IPC.
181. The constitution framers could have never intended

that the protection of fundamental rights was only for the
majority population. If such had been the intention, then all
provisions in Part III of the Constitution would have
contained qualifying words such as 'majority persons' or
'majority citizens'. Instead, the provisions have employed
the words 'any person‘ and any citizen' making it manifest
that the constitutional courts are under an obligation to
protect the fundamental rights of every single citizen
without waiting for the catastrophic situation when the
fundamental rights of the majority of citizens get violated.
183. Such a view is well supported on two counts, namely,

one that the constitutional courts have to embody in their
approach a telescopic vision wherein they inculcate the
ability to be futuristic and do not procrastinate till the day
when the number of citizens whose fundamental rights are
affected and violated grow in figures. In the case at hand,
whatever be the percentage of gays, lesbians, bisexuals and
transgenders, this Court is not concerned with the number
148
of persons belonging to the LGBT community. What
matters is whether this community is entitled to certain
fundamental rights which they claim and whether such
fundamental rights are being violated due to the presence
of a law in the statute book. If the answer to both these
questions is in the affirmative, then the constitutional
courts must not display an iota of doubt and must not
hesitate in striking down such provision of law on the
account of it being violative of the fundamental rights of
certain citizens, however minuscule their percentage may
be.
184. A second count on which the view in Suresh Koushal

(supra) becomes highly unsustainable is that the language
of both Articles 32 and 226 of the Constitution is not
reflective of such an intention. A cursory reading of both
the Articles divulges that the right to move the Supreme
Court and the High Courts under Articles 32 and 226
respectively is not limited to a situation when there is
violation of the fundamental rights of a large chunk of
populace.
185. Such a view is also fortified by several landmark

judgments of the Supreme Court such as D.K. Basu v. State
of W.B.71 wherein the Court was concerned with the
fundamental rights of only those persons who were put
under arrest and which again formed a minuscule fraction
of the total populace. Another recent case wherein the
Supreme Court while discharging its constitutional duty
149
did not hesitate to protect the fundamental right to die with
dignity is Common Cause (A Regd. Society) (supra)
wherein the Supreme (1997) 1 SCC 416 Court stepped in
to protect the said fundamental right of those who may have
slipped into permanent vegetative state, who again form a
very minuscule part of the society.
186. Such an approach reflects the idea as also mooted by

Martin Luther King Jr. who said, ―Injustice
anywhere is a threat to justice everywhere. While
propounding this view, we are absolutely conscious of the
concept of reasonable classification and the fact that even
single person legislation could be valid as held in Chiranjit
Lal Chowdhury v. Union of India, which regarded the
classification to be reasonable from both procedural and
substantive points of view.”
BBB. E. Because constitutional courts must protect constitutional morality

and disregard social morality. It is the duty of the courts to ensure
that queer persons , however small in number or disregarded by
society are given the full protection of rights under the
Constitution. In Navtej Singh Johar v. Union of India, the then
CJI Dipak Mishra held that in the garb of social morality,
members of the queer community cannot be denied their
fundamental rights. The relevant para of the judgment is as
follows:
150
“122. In the garb of social morality, the members
of the LGBT community must not be outlawed or
given a step-motherly treatment of malefactor by
the society. If this happens or if such a treatment to
the LGBT community is allowed to persist, then the
constitutional courts, which are under the
obligation to protect the fundamental rights, would
be failing in the discharge of their duty. A failure
to do so would reduce the citizenry rights to a
cipher.
CCC. F. Because the nature of our constitution is transformative and rights

thereunder aim to develop with society and change as society
changes, the right to marry for queer persons , which was not
recognised before, should be recognised now. This transformative
constitutionalism allows the Constitution to be a living document
that breathes lives into communities who have been previously
social and legally discarded. The constitution must be interpreted
in a manner to protect rights of all individuals regardless of their
gender identity or sexual orientation.
DDD. G. Because the constitution must be interpreted in a dynamic and

progressive manner, to ensure that purpose of the rights under the
Constitution are fulfilled. Such interpretation requires
prioritisation of the constitutional obligation to give all the rights
under the Constitution to all persons including queer persons . In
Naz Foundation v. Government of NCT of Delhi and others
(2009) 111 DRJ 1, this Hon’ble court held that,
151
“114. A constitutional provision must be construed,

not in a narrow and constricted sense, but in a wide
and liberal manner so as to anticipate and take
account of changing conditions and purposes so that
the constitutional provision does not get atrophied
or fossilized but remains flexible enough to meet
the newly emerging problems. [Francis Coralie
Mullin v. Union Territory of Delhi (supra), para 6 of
SCC). In M. Nagraj v. Union of India, (2006) 8 SCC
212, the Constitution Bench noted that:
"Constitution is not an ephemeral legal document

embodying a set of legal rules for the passing hour.
It sets out principles for an expanding future and is
intended to endure for ages to come and
consequently to be adapted to the various crisis of
human affairs. Therefore, a purposive rather than
a strict literal approach to the interpretation should
be adopted. A Constitutional provision must be
construed not in a narrow and constricted sense but
in a wide and liberal manner so as to anticipate and
take account of changing conditions and purposes so
that constitutional provision does not get fossilized
but remains flexible enough to meet the newly
emerging problems and challenges" [para 19 of
SCC)”
152
EEE. H. It is for the aforementioned reasons that the non-recognition of
same sex or non-heterosexual or queer persons marriages in India
is manifestly unjust and a violation of the fundamental rights of
the Petitioners under Articles 14 and 21 which are available to all
persons including foreigners and the public at large under Articles
14, 15, 19 and 21.
FFF. I. That the Petitioners seek leave of this Hon’ble Court to raise
additional grounds during the course of the proceedings.
GGG. J. The Petitioners have not filed any other petition praying for a
similar relief before this court or any other court apart from the
present petition/lis.
HHH. K. The Petitioners submit that they have no alternative, efficacious

remedy under the law except to approach this Hon’ble Court by
way of the present Writ Petition under Article 226 of the
Constitution of India.
III. L. The balance of convenience and/or inconvenience entirely lies in

favour of passing of orders as prayed for herein.
JJJ. M. This Petition is made bona fide and in the interest of justice and
unless orders as prayed for herein are passed, the Petitioner will
suffer irreparable loss, prejudice and injury.
PRAYERS
In the aforesaid facts and circumstances it is respectfully prayed
that this Hon’ble Court may be pleased to:
153
(a) Issue a writ, order or direction in the nature of a declaration
that since section 7A(1)(d) of the Citizenship Act, 1955, does
not distinguish between heterosexual, same-sex or queer
spouses, a person married to an Overseas Citizen of India,
whose marriage is registered and subsisting for two years, be
eligible to apply as a spouse for an OCI card.
(b) Issue a writ, order or direction in the nature of prohibition to

Respondent no. 2, restraining it from declaring a spouse of an
OCI applying for an OCI card to be ineligible for the same
merely, on the ground that they are in a same-sex marriage or
queer (non-heterosexual) marriage; and also restraining it from
refusing to certify/apostille the registered marriage certificate
of the Petitioner Nos. 1 and 2 on this ground.
(c) Issue a writ, order or direction in the nature of declaration that

to the extent the Foreign Marriage Act, 1969 excludes same-
sex marriages or queer marriages, it violates articles 14, and
21 of the Constitution of India; and further read the Foreign
Marriage Act, 1969 to recognize marriages between
consenting adults irrespective of the gender, sex and sexual
orientation of the parties;
(d) Issue a writ, order or direction in the nature of declaration that

to the extent the Special Marriage Act, 1954 excludes same-
sex marriages or queer marriages, it violates articles 14, 15, 19
and 21 of the Constitution of India; and further read the
Special Marriage Act 1954 to recognize marriages between
154
consenting adults irrespective of the gender, sex and sexual
orientation of the parties;
(e) Issue a writ order or direction in the nature of declaration to

the effect that the right to legal recognition of a same sex
marriage or queer marriage is a fundamental right under
Articles 14, 15, 19 and 21 irrespective of a person’s gender,
sex or sexual orientation; and that all such marriages be legally
recognized in India by the under the applicable statutes, rules
and policies that are in force.
(f) Pass such other orders as may be deemed fit in the interest of
justice in the facts and circumstances of the case.
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
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JJJ
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Press Information Bureau
Government of India
*****
MHA relaxes Visa and Travel restrictions imposed in response to COVID -19,
permitting certain categories of OCI cardholders stranded abroad, to come back to
India
New Delhi, May 22, 2020

Union Ministry of Home Affairs (MHA) has relaxed Visa and Travel restrictions imposed in
response to COVID -19, permitting certain categories of Overseas Citizen Of India (OCI)
cardholders, who are stranded abroad, to come to India.
Following categories of OCI Cardholders stranded abroad, have been permitted to come to
India:-
• Minor children born to Indian nationals abroad and holding OCI cards.
• OCI cardholders who wish to come to India on account of family emergencies like
death in family.
• Couples where one spouse is an OCI cardholder and the other is an Indian national
and they have a permanent residence in India.
• University students who are OCI cardholders (not legally minors) but whose parents
are Indian citizens living in India.
The travel restrictions, imposed earlier by MHA on 07.05.2020, would not apply to any
aircraft, ship, train or any other vehicle deployed for bringing back the above mentioned
categories of OCI cardholders who are stranded abroad. All other terms and conditions laid
down by MHA on 07.05.2020 would continue to remain in effect.
Click here to see the Official Document
*****
VG/SNC/VM
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रजिस्ट्री सं. डी.एल.- 33004/99 REGD. No. D. L.-33004/99
सी.जी.-डी.एल.-अ.-04032021-225647
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CG-DL-E-04032021-225647
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असाधारण
EXTRAORDINARY
भाग II—खण्ड 3—उप-खण्ड (ii)
PART II—Section 3—Sub-section (ii)
प्राजधकार से प्रकाजित
PUBLISHED BY AUTHORITY
सं. 962] नई दिल्ली, बृहस्ट्पजतवार, माचच 4, 2021/फाल्गुन 13, 1942

No. 962] NEW DELHI, THURSDAY, MARCH 4, 2021/PHALGUNA 13, 1942
गृह मंत्रालय
अजधसूचना
नई दिल्ली, 4 माचच, 2021
का.आ. 1050(अ).—कें द्रीय सरकार, नागररकता अजधजनयम, 1955 (1955 का 57) की धारा 7ख की उपधारा
(1) द्वारा प्रि्त िजतियय का प्रयगग करते ुएए ताा रािपत्र में प्रकाजित गृह मंत्रालय, भारत सरकार की अजधसूचना
सं. का.आ. 542(अ), तारीख 11 अप्रैल, 2005 ताा रािपत्र में प्रकाजित तत्कालीन प्रवासी भारतीय कायच मंत्रालय, भारत
सरकार की अजधसूचना सं. का.आ. 12(अ), तारीख 5 िनवरी, 2007 ताा का.आ. 36(अ), तारीख 5 िनवरी, 2009 कग,
उन बात के जसवाय अजधक्ांत करते ुएए, जिन्हें ऐसे अजधक्मण के पूवच दकया गया है या करने से लगप दकया गया है,
जनम्नजलजखत अजधकार कग जवजनर्िचष्ट करती है जिनका कगई भारत का प्रवासी नागररक काडच धारक रािपत्र में इस
अजधसूचना के प्रकािन की तारीख से हकिार हगगा, अााचत् :-
(1) दकसी प्रयगिन के जलए भारत आने हेतु िीवन पयचन्त बुए प्रवेि वीिा अनुि्त करना:
परं तु जनम्नजलजखत दक्याकलाप करने के जलए, भारत का प्रवासी नागररक काडच धारक कग सक्षम
प्राजधकारी या जविेिी क्षेत्रीय रजिस्ट्रीकरण अजधकारी या संबंजधत भारतीय जमिन से, यााजस्ट्ाजत, जविेष
अनुज्ञा या जविेष अनुज्ञजि प्राि करना अपेजक्षत हगगा, अााचत्:-
1397 GI/2021 (1)

2 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)]
188
(i) अनुसंधान करने के जलए;
(ii) दकन्हीं जमिनरी या तबलीग़ या पवचतारगहण या पत्रकाररता संबंधी दक्याकलाप के जलए;
(iii) भारत में दकन्हीं जविेिी रािनजयक जमिन या जविेिी सरकारी संगठन में इं टनचजिप करने के
जलए या भारत में दकन्हीं जविेिी रािनजयक जमिन में रगिगार के जलए;
(iv) दकसी ऐसे स्ट्ाान पर भ्रमण के जलए, िग कें द्रीय सरकार या सक्षम प्राजधकारी द्वारा याा
अजधसूजचत संरजक्षत या जनबंजधत या प्रजतजषद्ध क्षेत्र है;
(2) भारत में दकसी भी अवजध के ठहराव के जलए जविेिी क्षेत्रीय रजिस्ट्रीकरण अजधकारी या जविेिी
रजिस्ट्रीकरण अजधकारी के पास रजिस्ट्रीकरण से छू ट:
परं तु भारत के प्रवासी नागररक काडच धारक, िग सामान्यतः भारत में जनवासी हैं, अजधकाररता वाले
जविेिी क्षेत्रीय रजिस्ट्रीकरण अजधकारी या जविेिी रजिस्ट्रीकरण अजधकारी कग ई-मेल द्वारा सूजचत करें गे,
िब कभी उनके स्ट्ाायी जनवास के पते या उनके व्यवसाय में कगई पररवतचन हगता है;
(3) जनम्नजलजखत के जवषय में भारत के राजिक से समानता,-
(i) भारत में घरे लू क्षेत्र में वायुयान भाडे के टैररफ; और
(ii) भारत में रािीय उद्यान, वन्यिीव अभ्यारण्य, रािीय स्ट्मारक, ऐजतहाजसक स्ट्ाल और संग्रहालय
िेखने हेतु वसूल की िाने वाली प्रवेि फीस;
(4) जनम्नजलजखत के जवषय में अजनवासी भारतीय से समानता,-
(i) ऐसे ि्त क ग्रहण के जलए सक्षम प्राजधकारी द्वारा याा अजधकजात प्रदक्या के अनुपालन के अधीन
रहते ुएए, भारतीय बालक का अंतिेिीय ि्त क ग्रहण;
(ii) उन्हें के वल दकसी अजनवासी भारतीय सीट या दकसी अजधसंख्य सीट पर प्रवेि के जलए पात्र
बनाने हेतु अजखल भारतीय प्रवेि परीक्षाओं, िैसे रािीय पात्रता-सह-प्रवेि परीक्षा, संयुतिय प्रवेि
परीक्षा (मुख्य), संयुतिय प्रवेि परीक्षा (उच्च) या ऐसी अन्य परीक्षाओं में सजममजलत हगना:
परं तु भारत का प्रवासी नागररक काडच धारक जवजिष्टतया भारत के नागररक के जलए आरजक्षत
दकसी सीट पर प्रवेि के जलए पात्र नहीं हगगा;
(iii) कृ जष भूजम या फामच हाउस या बागान संपज्त से जभन्न अचल संपज्त का क्य या जवक्य; और
(iv) यााजस्ट्ाजत, लागू सुसंगत पररजनयम या अजधजनयम में अंतर्वचष्ट उपबंध के अनुसार
जनम्नजलजखत वृज्त यां करना, अााचत्:-
(क) जचदकत्सक, िंत जचदकत्सक, पररचाजयका और भेषिज्ञ;

(ख) अजधवतिया;
(ग) वास्ट्तुजवि्;
(घ) चाटचडच अकाउन्टेंट;
(5) अन्य सभी आर्ाचक, जव्त ीय और िैक्षजणक क्षेत्र के संबंध में, जिन्हें इस अजधसूचना में जवजनर्िचष्ट नहीं
दकया गया है या जविेिी मुद्रा प्रबंध अजधजनयम, 1999 (1999 का 42) के अधीन भारतीय ररिवच बैंक
द्वारा की गई अजधसूचनाओं के अंतगचत नहीं आने वाले अजधकार और जविेषाजधकार के संबंध में भारत के
प्रवासी नागररक काडच धारक के वही अजधकार और जविेषाजधकार ह गे िग दकसी जविेिी व्यजतिय के हैं।
[भाग II—खण्ड 3(ii)] भारत का रािपत्र : असाधारण 3 189
स्ट्पष्टीकरण,- इस अजधसूचना के प्रयगिन के जलए,-
(1) भारत का प्रवासी नागररक काडच धारक (जिसके अंतगचत भारतीय मूल का व्यजतिय काडच धारक भी है) अन्य
िेि का पासपगटच धारण करने वाला जविेिी राजिक है और भारत का नागररक नहीं है।
(2) “अजनवासी भारतीय” का वही अाच हगगा िग इसका जविेिी मुद्रा प्रबंध अजधजनयम, 1999
1999 का 42) के अधीन भारतीय ररिवच बैंक द्वारा बनाए गए जविेिी मुद्रा प्रबंध (भारत में अचल संपज्त
का अिचन और अंतरण) जवजनयम, 2018 में उसका है ताा िग आयकर अजधजनयम, 1961 (1961 का
43) के अनुसार “अजनवासी भारतीय” की प्राजस्ट्ाजत कग पूणच करता है।
[फा. सं. 26011/सीसी/05/2018-ओसीआई]
प्रमगि कु मार, जनिेिक
MINISTRY OF HOME AFFAIRS

NOTIFICATION
New Delhi, the 4th March, 2021
S.O. 1050(E).— In exercise of the powers conferred by sub-section (1) of section 7B of the Citizenship Act,
1955 (57 of 1955) and in supersession of the notification of the Government of India in the Ministry of Home Affairs
published in the Official Gazette vide number S.O. 542(E), dated the 11th April, 2005 and the notifications of the
Government of India in the erstwhile Ministry of Overseas Indian Affairs published in the Official Gazette vide
numbers S.O. 12(E), dated the 5th January, 2007 and S.O. 36(E), dated the 5 th January, 2009, except as respect things
done or omitted to be done before such supersession, the Central Government hereby specifies the following rights to
which an Overseas Citizen of India Cardholder (hereinafter referred to as the OCI cardholder) shall be entitled, with
effect from the date of publication of this notification in the Official Gazette, namely:─
(1) grant of multiple entry lifelong visa for visiting India for any purpose:
Provided that for undertaking the following activities, the OCI cardholder shall be required to obtain
a special permission or a Special Permit, as the case may be, from the competent authority or the
Foreigners Regional Registration Officer or the Indian Mission concerned, namely:-
(i) to undertake research;
(ii) to undertake any Missionary or Tabligh or Mountaineering or Journalistic activities;
(iii) to undertake internship in any foreign Diplomatic Missions or foreign Government
organisations in India or to take up employment in any foreign Diplomatic Missions in
India;
(iv) to visit any place which falls within the Protected or Restricted or prohibited areas as
notified by the Central Government or competent authority;
(2) exemption from registration with the Foreigners Regional Registration Officer or Foreigners
Registration Officer for any length of stay in India:
Provided that the OCI cardholders who are normally resident in India shall intimate the
jurisdictional Foreigners Regional Registration Officer or the Foreigners Registration Officer by
email whenever there is a change in permanent residential address and in their occupation;
(3) parity with Indian nationals in the matter of,-
(i) tariffs in air fares in domestic sectors in India; and
(ii) entry fees to be charged for visiting national parks, wildlife sanctuaries, the national
monuments, historical sites and museums in India;
(4) parity with Non-Resident Indians in the matter of,-
(i) inter-country adoption of Indian children subject to the compliance of the procedure as laid
down by the competent authority for such adoption;
4 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)]
190
(ii) appearing for the all India entrance tests such as National Eligibility cum Entrance Test,
Joint Entrance Examination (Mains), Joint Entrance Examination (Advanced) or such other
tests to make them eligible for admission only against any Non-Resident Indian seat or any
supernumerary seat:
Provided that the OCI cardholder shall not be eligible for admission against any seat
reserved exclusively for Indian citizens;
(iii) purchase or sale of immovable properties other than agricultural land or farm house or
plantation property; and
(iv) pursuing the following professions in India as per the provisions contained in the applicable
relevant statutes or Acts as the case may be, namely:-
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;
(c) architects;
(d) chartered accountants;
(5) in respect of all other economic, financial and educational fields not specified in this notification or
the rights and privileges not covered by the notifications made by the Reserve Bank of India under
the Foreign Exchange Management Act, 1999 (42 of 1999), the OCI cardholder shall have the same
rights and privileges as a foreigner.
Explanation.─ For the purposes of this notification,─
(1) The OCI Cardholder (including a PIO cardholder) is a foreign national holding passport of a foreign
country and is not a citizen of India.
(2) “Non-Resident Indian” shall have the same meaning as assigned to it in the Foreign Exchange
Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2018 made by
the Reserve Bank of India under the Foreign Exchange Management Act, 1999 (42 of 1999) and who
fulfils the “Non-Resident Indian” status as per the Income Tax Act, 1961 (43 of 1961).
[F. No. 26011/CC/05/2018-OCI]

PRAMOD KUMAR, Director
Uploaded by Dte. of Printing at Government of India Press, Ring Road, Mayapuri, New Delhi-110064
and Published by the Controller of Publications, Delhi-110054.
ALOK KUMAR Digitally signed by ALOK KUMAR
Date: 2021.03.04 22:36:55 +05'30'
191
ANNEXURE P-8
ANNEXURE P-8 (COLLY)
ANNEXURE P-
Decriminalizing Homosexual Sex in India: An Inspiring Movement
October 27, 2009

IWHC
On October 22, my colleague Chelsea Ricker and I went to a very

inspiring panel organized by the Center for Human Rights and Global
Justice (CHRGJ), “Litigating Human Rights Series: The Task and
Implications of Decriminalizing Homosexual Sex in India.” The recent
decision by the Delhi High Court to repeal Penal Code 377 has been by
far the single greatest event that has happened in my lifetime, and it
was fascinating to hear the reflections of those who were closely
involved in this historic event.
The event featured distinguished panelists including Anand Grover,

Project Director of the HIV/AIDS Unit of the Lawyers Collective in
India and recently appointed UN Special Rapporteur to Health. Grover
first filed the challenge to 377 on behalf of the Naz Foundation in
Delhi High Court more than eight years ago.
My friend, Mario D’Penha, a queer feminist historian was also on the

panel. Mario is a founding member of two organizations who are part
of Voices Against 377, a coalition of progressive organizations that
intervened in the case against Section 377. I felt so proud seeing him
on the panel, and fondly reminisced about how I used to see him at
Voices meetings, where he was one of the most active members, when
I was living in India.
192
Panelists shared fascinating insider tidbits about the struggle to
overturn 377. For example, Mr. Grover explained the original
reasoning for filing the petition in Delhi. For one, explained Grover,
they knew if they failed, they still would have the option of taking the
case to the Supreme Court. They also chose Delhi because its Tihar jail
had stopped distributing condoms due to 377, which provided a
concrete example of how 377 impairs AIDS prevention.
While the panel topic was focused on litigation, all the panelists agreed
that the single biggest factor that resulted in the repeal of 377 was the
change in mentality of judges, parliamentarians and everyday Indians
since the petition was filed in 2001. Activists in India have led
painstaking efforts in India to increase awareness about how HIV/
AIDS cannot be addressed in a punitive environment and to increase
support for the rights of LGBTQI people. I would have loved to hear
more about how women’s groups, child rights, human rights groups,
and LGBTQI all came together so effectively and emphatically on the
issue.
My friend, Caroline Earle, who works at Creating Resources for

Empowerment in Action, or CREA, did a brilliant job discussing a
very inspiring question asked by Carole Vance, an anthropologist and
activist who specializes in sexuality, human rights, health at the
Mailman School of Public Health. Vance asked how movements can
be brought together around shared issues that impact everyone such as
discrimination, privacy, consent, dignity, and the freedom to make
choices. Caroline pointed out that one of the greatest factors that led to
the Delhi High Court’s decision was the fact that so many diverse
193
groups and interests came together to oppose the law, which impacted
them all.
Moving forward, I hope that this collaborative spirit amongst diverse

groups will ensure further victories for civil and political rights in
India, particularly for women and sex workers.
TRUE COPY /-
194
ANNEXURE P- 9
OPEN TO OPINION
English | Bangla
 POLITICS
 ART & CULTURE
 SCI-TECH
 HUMOUR
 VARIETY
 VIDEOS
 VOICES
 SPORTS
 MORE


Why US ruling on same-snsuring basic rights and entitlements.
POLITICS
| 4-minute read | 07-07-2015
MARIO DA PENHA
@MLECHCHHA
In 1958, acting on an anonymous complaint, police arrested a black
woman and a white man in the US state of Virginia for sharing a bed.
195
At the time, this was a crime “against the peace and dignity” of the
state, punishable by a prison sentence of up to five years. Mildred and
Richard Loving had married in Washington DC, where a law against
interracial marriage did not exist, but lived in Virginia, where the anti-
miscegenation statute was by then more than 30 years old.
In 1987, acting on similar leads, police confined and later

dismissed two female police officers in Madhya Pradesh for sleeping
on the same bed. Leela Namdeo and Urmila Srivastava had married
each other in Bhopal by exchanging garlands after which whispers
about their intimacy degenerated into a sensational scandal in the
Indian media. In both cases, the dignity of a state, or a state institution
was defended through an act of exclusion: the Lovings were ordered to
leave Virginia, and Namdeo and Srivastava were intimidated out of
Bhopal.
The desire of both of these couples to live unhindered lives of

respect propelled them into conflict with the laws and social
conventions of their times. These are yearnings for dignity shared by
many others such as Jim Obergefell who sued his home state Ohio in
order to be recognised as the spouse of his then terminally ill and later
deceased partner of 21 years. There were relatively minor social
security and disability benefits at stake. Yet what drove Obergefell to
drag the state to court was not the cornering of monetary benefit but an
inclination far more fundamental to the human condition.
On June 26, the Supreme Court of the US recognised this inclination

when the majority opinion of Justice Anthony Kennedy stated that
196
same-sex couples had sought “equal dignity in the eyes of the law”.
The decision in the Obergefell versus Hodges case extends that honour
to more than 200 million Americans and all same-sex couples. US
President Barack Obama characterised the dawdling progress towards
this judgement as one where “slow, steady effort (was) rewarded with
justice that arrives like a thunderbolt”.
Yet, the story is not so simple. Among some queer activists, there
remains considerable dissatisfaction with the limited gains that the
marriage equality movement brings. Some, such as Chicago’s Yasmin
Nair, suggest that this struggle has “ravaged the economic landscape of
queer organising”, by channelling cash out of other important causes.
The range of such runner-up causes for limited resources is wide. To
take just one example: A 2012 nationwide survey by the Williams
Institute at the UCLA School of Law reports that 40 per cent of
homeless youth identify as lesbian, gay, bisexual, or transgender. A
plurality of these LGBT youth cite family rejection because of their
sexual and/or gender identities as the primary reason for their
homelessness.
Some believe the significance of the Supreme Court judgment

lies in reinforcing marriage as the dominant axis on which rights may
be fought for and won. As Jeff Redding, associate professor of law, St
Louis University, tells me, the Obergefell decision has heightened the
legal and social distinctions between married and unmarried people. “It
seems marriage is the be-all and end-all of mature citizenship in the
US,” he says. “To be unable or unwilling to marry is to be left in the
political wilderness.”
197
Some of these debates around LGBT activist priorities also

occur in India as the struggle to overturn Section 377 was defeated in
the Supreme Court in 2013. As attention from Obergefell travelled to
New Delhi, law minister DV Sadananda Gowda denied reports that the
government was planning to scrap the statute. BJP leader Subramanian
Swamy went a step further, terming homosexuality a “genetic
disorder”.
When it emerged, many queer people in India cheered the

Obergefell judgment: Atanu, an Assamese gay man from Delhi, who
married his American partner of five years in New York in 2013, says
that “every citizen deserves equal protection, rights and freedom”. Yet
several other queer Indians have suggested that the blueprint for equal
protection of the law lies not with marriage rights, but with
comprehensive anti-discrimination legislation for LGBT people and
the removal of Section 377.
Some progress on this blueprint has emerged from judicial and

legislative favour for transgender civil rights. In 2014, the Supreme
Court of India delivered a verdict that called for affirmative action for
the transgender population. Further, bipartisan political support for a
new transgender civil rights bill ensured it cleared the Rajya Sabha this
year. Yet even with transgender citizens, real progress has been much
slower. While lawmakers may seem zealous about ensuring that
transgender citizens come under India’s reservations regime, a spate of
violence against the same citizens has gone unchallenged.
198
So while one recognises that yearning for dignity that moved
Obergefell to fight for his rights, the battles in India remain more
fundamental — around preventing violence and ensuring basic rights
and entitlements that, ironically, both precede and are beyond the
question of marriage.
TRUE COPY/-
PERSPECTIVES
199
latter term would mean acknowledging that other groups made.”
could have an older claim to this land. (Organisations such Such attempts have attracted considerable resistance,
as the Gondwana Gantantara Party, which espouses a Gond providing fodder for only the most radical voices within the
identity outside the Hindu fold, define themselves as adiva- Sikh community. In a 2009 case that was underreported in
sis precisely to bolster a sense of ownership.) the national media, the head of the Rashtriya Sikh Sangat,
Dalits have never seriously claimed an identity outside Rulda Singh, was shot in Patiala and died of his injuries two
the Hindu fold, but have largely stayed away from associa- weeks later. At the height of the so-called Modi wave, dur-
tion with the Sangh. The recent Uttar Pradesh by-elections, ing the Lok Sabha elections, the Bharatiya Janata Party was
which were preceded by the Sangh’s attempts (still ongoing) still unable to get its candidate, Arun Jaitley, elected from
to polarise Dalits and Muslims, may signal a new strategy the Sikh-dominated constituency of Amritsar.
for fostering an aggressive “Hindu” identity among “lower- However, setting aside this aberration, which in numeri-
caste” voters. But battles over loudspeakers at temples—one cal terms count for little, the RSS does draw great satisfac-
pretext for the polarisation—cannot obscure the fact that tion from Modi’s electoral victory, tending to see it as an
for most Dalits even access to temples remains a problem. affirmation of the logic that drives their view of India. The
While Dalits and tribals represent Hindutva’s largest set BJP has failed to garner support from Christians and Mus-
of dissenters, in theoretical terms the greatest challenge lims, but it has effectively consolidated a “Hindu” vote cut-
to the ideology is the Sikh assertion of a separate identity, ting across caste. It is in this context that Modi’s rhetoric,
which undermines the very construct of a “Hindu rashtra” which has been so endlessly and so pointlessly analysed,
from within. With both their fatherland and holy land firm- must be understood.
ly within the country’s geographical boundaries, the Sikhs Hindutva allows Modi to speak of inclusiveness with-
of India satisfy Hindutva’s twin criteria for being “Hindus,” out spelling out that Muslims and Christians are less than
but they refuse to accept this nomenclature. On the birth equal by definition. Exclusion is built into the term, and his
anniversary of Guru Nanak in 1986, in the midst of the vio- record in Gujarat bears this out, as do his party’s first few
lence in Punjab, the RSS made a bid to woo the community months in power in Delhi. Only those commentators who
by floating a new outfit called the Rashtriya Sikh Sangat. have tried to project their own longings for an Indian inclu-
Perhaps aware of the potential for controversy, this organ- sivity onto him have missed noting this consistency.
isation’s aims continue to be shrouded in the same ambigu- Thus far, Modi has reconciled the two by outsourcing
ity that marks most of the Sangh’s efforts at garnering sup- the Hindutva agenda to cohorts such as Amit Shah and
port from more marginalised “Hindu” communities. Yogi Adityanath. At some point he is likely to be forced to
The website of the Rashtriya Sikh Sangat lists ten “res- choose between the Constitution’s guarantees of equality
olutions,” some of which are uncharacteristic as Sikh de- and Hindutva’s implicit exclusivity. While Modi does not
mands. One states that “in Pakistan, the Hindu shrines have, and is unlikely to get, the parliamentary numbers to
should be handed over to the Hindu community and it fundamentally tamper with the Constitution, we can guess
should be managed only by them. It should be opened for what his instinctive choice would be. We only have to re-
the Hindu devotees of India for Darshans.” Another articu- member that moment in Gujarat when the man who gamely
lates an RSS position that has few takers in the Sikh com- sports headgear from any “Hindu” sect baulked when of-
munity: that “a magnificent temple of Shri Ram should be fered a skullcap. s
In Transition
New legal support for transgender people may challenge India’s affirmative action framework
Mario da Penha
O
n 15 April, the hijra activist Laxmi Narayan Tri- to choose their own gender. They asked the centre and the
pathi walked down the stairs of India’s Supreme states to endorse these choices on birth certificates, pass-
Court, overwhelmed by what she had just heard. ports, college application forms, ration cards, in public fa-
A division bench of Justices KS Radhakrishnan cilities and restrooms—in short, the range of services that
and AK Sikri had reversed a longstanding policy of actively gender our national belonging.
excluding from public life those outside the male–female More radically, the judges insisted that elected repre-
gender binary. sentatives create plans to incorporate transgender people
Since the colonial era, such individuals had been de- within India’s mammoth affirmative action regime. “There
meaned as eunuchs, dislodged from positions of political is a growing recognition,” the court wrote in its judgement,
authority, dispossessed of their property and livelihoods, “that the true measure of development of a nation is not
and finally criminalised. The justices sought to neutralise economic growth; it is human dignity.”
this legacy by recognising the fundamental right of citizens Tripathi, who has spent 16 years working for transgender
04 | THE CARAVAN | NOVEMBER 2014

Chandan Khanna / AFP / Getty Images
PERSPECTIVES
200
Transgender activists celebrated in Delhi, a few days after the Supreme Court’s April verdict recognising third gender status.
justice, was in tears after hearing the decision. “I felt that all its radical implications, the judgement left some thorny
no other person of my gender would ever again go through questions unanswered. The transgender community in the
what I have gone through,” she told me. “One of the tall- South Asian context weaves together complicated threads
est pillars of democracy in this world had given us back our of community and caste with those of gender. The judge-
rights.” ment did not specifically address how India’s reservations
The watershed verdict in National Legal Services Author- structure, built predominantly to empower an assortment
ity vs. Union of India marks a fundamental shift in the coun- of caste identities, will accommodate a community ostensi-
try’s established norms for recognising and accommodat- bly constituted by gender difference. It remains unclear in
ing marginalised communities in the social and political the eyes of the law whether, for the purposes of affirmative
mainstream. Affirmative action is largely pursued through action, the transgender community includes individuals
reservations in educational institutions and in public em- who simply self-identify as such.
ployment, and these reservations are largely accorded To understand its future interpretations and impact, this
on the basis of varna and jati. Generations of federal and momentous judgement must be placed within the long his-
state government programmes—as well as Supreme Court tory of defining and demarcating people who are neither
judgements—have confirmed the primacy of caste in the male nor female in India. In the immediate pre-colonial
pursuit of affirmative action, even when beneficiaries are period, hijras and jogappas, who both serve as ritual func-
not legally Hindu. By recognising that transgender people tionaries to the subcontinent’s gods and saints, were among
are discriminated against because of their gender identity, a range of initiation-based groups, which accepted people
and granting that such discrimination constitutes them as of heterogeneous origins who had abandoned the security
a distinct class, the court has unsettled this consensus. It of their ethnic communities and families. Historical sourc-
now seems plausible that factors other than caste or ethnic- es from the eighteenth century tend not to dwell on ethnic
ity could become the basis for successful claims to affirma- origins or corporeal difference in their mentions of hijras.
tive action by different kinds of groups. The term “hijra” itself—Arabic for “to leave one’s tribe be-
The first part of the judgement—legal recognition of gen- hind”—suggests apathy towards individual histories, and to
der identities other than male or female—is comparable to castes and pasts foregone.
similar decisions made by governments and courts around Colonialism brought two persistent forms of categorisa-
the world. The second—affirmative action policies for those tion that continue to shape new legislation for transgender
identifying as transgender—is perhaps unique to India. In people: a focus on the authenticity of ethnic origins, and on
NOVEMBER 2014 | THE CARAVAN | 05

PERSPECTIVES
201
corporeal difference. In 1836, RD Luard, the enterprising This transgender community’s public assertions of its
sub-collector of Solapur, recorded that six hijras under his identity over the last fifty years have drawn legitimacy
jurisdiction came from four separate ethnic groups. (That from its association with ritual power. The legitimacy ac-
all six remembered and divulged these details is a notewor- crued by one identity, based in ritual, has buoyed the em-
thy reminder of the durability of ethnic identity.) By 1892, powerment of the larger umbrella group of transgender
HB Abbott, another colonial official, recorded that 356 hi- people, and strengthened the case for national reservations
jras in Rajputana were born in 38 distinct Hindu, Muslim for all individuals identifying as neither male nor female,
and animist ethnic communities. This sort of documenta- or transitioning from one to the other. After the court’s
tion, usually for the Imperial Census, was ambivalent about verdict, as national reservations for at least some groups of
the suitability of classifying hijras as a caste, or an ethnic transgender people come to pass, Aravanis will be counted
group unto themselves. among 180 other “backward class” ethnic groups in Tamil
Even as original jati began to be counted as a part of hi- Nadu—including the Vanniyars.
jra identity due to the mechanisms of the colonial census, But “transgender” does not denote an organic category
physical difference became increasingly important as a based on long-term ethnic identification, and questions of
marker. The colonial term “eunuch” was used as an umbrel- who can claim the term—along with its new benefits—have
la to cover all kinds of gender variance, just as “transgen- arisen. Many transmen (who were assigned female at birth,
der,” which gained currency in the 1980s, is today. but now identify as men), transwomen (who were assigned
These colonial exercises were primarily for studying—and male at birth, but now identify as women), and genderqueer
sometimes controlling—minority populations, not empow- people (who subvert gender binaries altogether) fear they
ering them. The Supreme Court’s judgement stands as an will be left out of the reforms set into motion by the April
attempt to depart from this norm. Justices Radhakrishnan verdict. In the Marathi weekly Loksatta Chaturang, Mridul,
and Sikri timed their judgement to coincide with the sixth a transman activist, expressed concern that the verdict al-
anniversary of the pre-eminent model for any social wel- lowed the media to be able to equate “‘transgender’ with
fare initiative for transgender people in India: the country’s ‘hijra’ or ‘kinnar,’ completely ignoring every other kind of
first Transgender Welfare Board, set up in 2008 by the Ta- trans identity or reality, just as society has always done.”
mil Nadu government. (Maharashtra set up a similar board Any affirmative action in line with the court’s ruling
this September.) While the Board cannot authorise affirm- would require transgender people to be classified as Other
ative action, it disburses identity documents, subsidies, and Backward Classes; even transgender people with Sched-
limited pensions that incorporate transgender people into uled Caste or Scheduled Tribe origins would be treated as
the state’s social welfare programmes. OBCs. This would make them vulnerable by placing them
Tamil Nadu’s Transgender Welfare Board was formed in within a generally more privileged pool of people, a dilem-
part to address the struggles of one particular community ma that Tripathi, who grew up Brahmin, empathises with.
in the state, and the history of how Aravani identity has In September, almost five months after the landmark
been constituted and defined illuminates some of the dif- judgment, the federal government raised some pertinent
ficulties the judgment in National Legal Services Authority points of procedure with regard to the judgement—hinting,
vs. Union of India will throw up. Until the early twentieth perhaps, at an undercurrent of resistance. Attorney Gen-
century, an annual festival in the village of Koovagam re- eral Mukul Rohatgi petitioned the court to clarify a few of
quired men of the Vanniyar ethnic community to dress as the federal government’s concerns with the verdict. Rohat-
women, signifying Krishna’s transformation into Mohini gi asked whether the executive must follow the court’s di-
to marry the deity Aravan. Across southern India, similar rection in the verdict suo moto—without prompting from a
performances remain popular to this day, across a range of third party—or whether legislation must follow “procedure
ethnic groups bound by this ritual. established,” and be routed through the National Commis-
However, by the 1920s, after at least 90 years of upward sion for Backward Classes, which considers whom to in-
social mobility, the Vanniyars began to fashion them- clude in binding lists of backward classes for reservations.
selves as Kshatriyas. Christian missionary memoirs, such Second, since affirmative action would occur by classifying
as Henry Whitehead’s The Village Gods of South India, re- transgender people as OBCs, Rohatgi asked whether those
corded that Vanniyar men began to resent the practice of who grew up as SCs and STs would also be codified as OBC.
dressing as women. R Narulla’s Tamil monograph, Alikkal However, not many transgender people I spoke to seemed
Valkkai argues that beginning in the 1960s, the Alis, the to be aware that—in fact—the NCBC had already recom-
local transgender community, visited Koovagam, and ap- mended including transgender people in the central list of
propriated the ritual of gender transformation from Van- OBCs, less than a month after the verdict and in the midst
niyar men. By the early 2000s, as their association with of election season chaos. It is unclear why Rohatgi request-
the Koovagam festival grew, and their own prestige rose, ed the Supreme Court for clarity when the NCBC’s impri-
the Alis abandoned their previous nomenclature, now con- matur was already an accomplished fact. Anand Grover, a
sidered derogatory, and adopted the new name “Aravani.” senior lawyer associated with the case, suggested that the
A community constituted by the ritual practice of cross- federal government did so perhaps because it had failed to
dressing was now composed of transgender individuals understand the case appropriately. “If the Commission has
who appropriated that gender-queering ritual. already made a recommendation, there should be no issue,”
06 | THE CARAVAN | NOVEMBER 2014

PERSPECTIVES
202
he told me. At first, the government interpreted these reservations to
But within the transgender community, too, there are apply only to public employment; only much later did it ex-
differing opinions on how to resolve these questions. Some tend them to educational institutions. This September, the
suggest a compromise that will allow members who grew Supreme Court fought off the latest federal challenge, in
up SC/ST to continue seeking reservations under that cat- which the government argued that reservations for people
egory, while most others would be classified as OBC. Living with disabilities might be considered for jobs in the civil
Smile Vidya, or “Smiley,” a transwoman artist and activist services, but baulked at extending them to promotions in
born into the Dalit Arunthathiyar community, disagreed the top echelons. If transgender reservations were to sail
with this view. She told me she believes such an approach in their own autonomous waters, without the mooring of
will bring no benefit to transgender people who grew up an OBC listing, their relatively small size—pegged and pos-
like her, and worries that if transgender Dalits remain cat- sibly underestimated by the 2011 census at 4.9 lakh—might
egorised as SCs, they will compete against those Dalits who make them vulnerable to similarly narrow interpretations,
didn’t struggle with their gender or their families. and to legal challenges based on the government’s whims.
Smiley is one of five transgender people who last No- “Nobody will deliver justice to your door,” Tripathi told
vember approached the Madras High Court demanding a me, despite her enthusiasm for the judgement. “We still
3 percent reservation for transgender people under a new have a long road ahead.” For her part, Smiley remained
category, mirroring reservations for people with disabili- clear about why affirmative action is vital to this journey:
ties. “If Dalits can receive separate reservations, as Dalits; “When parents see a transgender child, they think of beg-
and people with disabilities can receive the same, as peo- ging or sex work as their future. How will they accept their
ple with disabilities—why can’t transgender people receive own children if these are their only options?” Reservations
reservations separately?” While innovative and well rea- for transgender people could aid the social transformation
soned, the proposal is not without its complications. Af- that Smiley dreams about, but they will also push bounda-
firmative action for people with disabilities, defined as hor- ries by leading India’s affirmative action policies into un-
izontal reservations that cut across ethnic barriers, began charted territory, where the old consensus on caste no
with legislation in 1995 but has proceeded at a snail’s pace. longer holds. s
Demography Now
India’s misguided family planning policies
Ruhi Kandhari
I
n June this year, less than a month after taking tions. That loss, the Congress’s first ever fall from central
office, the union health minister Harsh Vardhan de- power, was widely seen as an electoral backlash against
clared in an interview to the Deccan Chronicle that Gandhi’s authoritarian actions during the Emergency,
“population stabilisation” was high on his agenda. In prominent among which was the programme of forced va-
another interview around two months later to the same pa- sectomies.
per, Vardhan elaborated on his plans: he intends to revive a The previous NDA government had, in fact, considered
controversial draft bill from 1992, which would disqualify pushing the 1992 draft bill through, with the support of
anyone with more than two children from membership to several of its chief ministers. But the coalition fell out of
parliament or legislative assemblies. power before it made any significant progress, and the UPA
Vardhan’s statements received little attention, and were government—particularly the left parties in the coalition—
not discussed in the media. But the government’s moves was less enthusiastic, steering clear of introducing any leg-
will merit scrutiny, since the statements suggest that the islation on the subject. With the NDA back in power now,
health minister is ignorant of the globally established fact and the issue having resurfaced with Vardhan’s statements,
that coercive population control measures not only violate it is worth examining the often vexed questions of family
human rights but are simply not effective in curbing popu- planning and population control against their historical
lation growth. context in India.
Since family planning and population control fall under The debate on how policymakers should treat the ques-
the concurrent list of the Indian constitution, both the cen- tion of population control is broadly split along two lines.
tral government as well as respective state governments In a 1995 essay, titled “Population Policy: Authoritarian-
have the power to frame laws and policies on these subjects. ism versus Cooperation,” the economist Amartya Sen de-
But while several states have enacted laws on population scribed these two contrasting approaches in terms of an
control in the past three decades, governments in power at eighteenth-century dispute between the French math-
the centre have by and large been wary of dealing with the ematician Nicolas de Condorcet, and the English scholar
issue since Indira Gandhi’s defeat in the 1977 general elec- Thomas Malthus. Both felt that population growth was a
NOVEMBER 2014 | THE CARAVAN | 07

203
204
VIII
P O L I T I CS O F G E N d E R
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205
52
QUEERING THE CA MPUS
THE ANJUMAN ExPERIENCE (2003–06)
mario da penha
O n a crisp autumn evening in 2003, a circle of friends who identified

across the sexuality spectrum were sipping chai and trading banter
at JNU’s iconic Ganga Dhaba. As new arrivals to the university’s social
sciences and languages programmes, we sensed a void around conversations
on queerness in an otherwise politically active and intellectually robust
institution. We were all young people who had come to work in activism
around sexuality either because our identities necessitated it or because
of the rare, but exceptional feminist academic training in undergraduate
colleges in Indian cities that existed in the early millennial years. Not long
before, lesbian groups had defended the film Fire (1996) against violent
assaults from the Shiv Sena and the Bajrang Dal. Moreover, after two years
of silence, the BJP-led government had responded to Naz Foundation’s
petition challenging Section 377 of the Penal Code in the Delhi High
Court. It declared that Indian society disapproved of homosexuality, and
that alone was reason enough to retain the criminal statute.
Fired by sexuality’s moment in the country’s imagination, we
believed it was an appropriate time to create a students’ platform around
queerness on campus. Gay students of generations before us noted their
unwillingness to wear their sexual identities on their sleeves, for fear of
peer harassment and social ridicule. Only some of us were gay or bisexual,
but nevertheless, all of us knew that challenging sexual norms went beyond
just how we identified. How would we go about this? What would we
call ourselves? At that instant, as a cold, invigorating breeze blew by the
dhaba, Parth crooned a courtesan’s song from Umrao Jaan: ‘Is Anjuman
Mein Aapko Aana Hai Baar Baar.’ Anjuman! A milieu, a space, a mehfil
where difference was welcomed, and celebrated, without prejudice—that’s
what we aspired to. How appropriate it was that we had named ourselves
309
215_JNU STORIES_2020.indd 309 06-10-2020 15:11:45

206
310 j nu stor i es
after the words of a tawaif, a woman who skirted the edges of conformity
within orthodox society. Our university’s first queer collective (and India’s
second) had just been born.
Confronting Prejudices
During the roughly two and a half years of Anjuman’s active work in
JNU, challenging social biases and stereotypes around gender and
sexuality remained one of our primary endeavours. At that time, many
progressive students welcomed our presence, and supported our efforts at
the university. However, as we soon discovered, clusters of conservatism
also thrived on campus. Our introductory poster, made in both English
and Hindi, tackled commonplace stereotypes of the time, such as ‘women
become lesbian when they can’t find a man’, ‘homosexuals are mentally
ill’, and ‘lesbians and gays can convert you to homosexuality if you are
not careful’. We plastered these around liberally, but many posters were
torn down; perhaps a sign of the entrenched prejudices we faced, and
the uphill task that lay before us. Undaunted, we often made second and
third posting rounds on the campus, and glued the ripped up bills back
on notice boards. That November, many prejudices also found a public
voice in the discussion following our screening of two films, Nishit Saran’s
coming out documentary, Summer In My Veins, and Deepa Mehta’s Fire.
Attendees queried the activist Gautam Bhan on whether homosexuality
was moral, whether human beings would go extinct, and what future the
family possessed if queer people were allowed to flourish. But even these
partisan—and sometimes antagonistic—questions, brought us comfort,
because the student community was finally speaking about sexuality in
the open.
Over the next few months, we grew increasingly aware of the spatial
nature of the hostility to our public discussions. Male students in and
around exclusive male hostels made it progressively inconvenient for us
to conduct public meetings freely. This homophobic belligerence began
in minor, innocuous ways. On the eve of Holi, in 2004, at the university’s
annual Chaat Sammelan, the festival of humour and satire on the lawns
outside Jhelum hostel, a comic asked women standing in the audience’s
rear to move forward. They needn’t worry about the guys ahead, he
quipped. ‘They’re all part of Anjuman.’ Other humorists then mimicked
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207
M A R IO DA PE N H A 311
two men kissing on stage, lampooning the collective. None of us were

part of the crowd that evening. But we had, nevertheless, become part of
the joke. In April, we organized a teatime lecture in the mess in Periyar
hostel. Visiting Filipina and Thai academics, Roselle Pineda and Amporn
Marddent, spoke about lesbians and sex workers organizing in Southeast
Asia. Male students in the neighbouring television room raised the volume
to drown out our speakers. Pineda raised her own voice in response, and
spoke above the racket, but Marddent was less successful. We moved out
eventually, and continued the lecture in the open at Godavari Dhaba. Both
Jhelum and Periyar were men’s hostels, and our claim over male spaces
for gatherings, where both masculinity and patriarchy were questioned,
had thrown many male students into a state of restlessness.
However, despite these ominous portents, nothing prepared us for
the full force of homophobic ridicule and intimidation, which awaited us
in September. That month, after the Delhi High Court dismissed Naz’s
petition, Anjuman organized an after-dinner public meeting in Jhelum
VIII.1. Sunandan and Padmini hold up the rainbow flag, and lead the Pink Triangle Day
march through the campus, March 2005.
Photo courtesy: Mario Da Penha
215_JNU STORIES_2020.indd 311 06-10-2020 15:11:45

208
312 j nu stor i es
hostel with two activists, Shaleen Rakesh and Pramada Menon on the
anti-sodomy law, and the desideratum of decriminalizing homosexuality.
On the night of the meeting, a huge mob, comprising mostly of men,
welcomed our speakers with intimidating body language and mocking
laughter, directing disrespectful, homophobic questions their way, speaking
loudly over them and often preventing them from responding. When a
student insinuated that homosexuality had a negative impact on Indian
culture, Menon countered him swiftly: Was this the same Indian culture,
which allowed for dowry murders, child abuse, and caste discrimination?
Pandemonium ensued. Audience members shouted invectives towards the
activists, and sneered at members of Anjuman. When it became clear that
we had lost control of the situation, and the throng was physically closing
in on us, we escorted Rakesh and Menon out, to jeers of ‘Homosexuality
hai hai,’ and ‘Gandu culture down down’. I remember my own tears that
night, as Ponni and Sophia held and comforted me. Outside, two Dalit
students offered solidarity to our embattled speakers; they were only
too familiar with such aggression meted out viciously, they observed,
whenever caste-based discrimination was discussed.
These turbulent events came as a rude awakening to the student
body’s self-understanding as a fulcrum for respectful debate. Until this
time, party leaders on the organized Left, who were our friends, had
distanced themselves organizationally from Anjuman, steering clear of
our events, and looking past any conversation on sexuality, which did
not encompass sexual harassment. Jhelum changed that. Within days, two
parties—the DSU and AISA—publicly extended support to our collective
for the first time. They decried the ‘atmosphere of hatred and intolerance’
and a ‘sense of homophobia’, which had resulted in attempts to deny
democratic spaces [to] subjugated voices who have dared to question
‘accepted’ norms of morality’. Professors like Neeladri Bhattacharya
and Purushottam Agrawal, scandalized by the violence, also stepped in,
guarding future public meetings, ensuring that such overt harassment
ceased. Others like Tanika Sarkar and Mary John promised assistance if
future meetings were threatened. The university had intervened to protect
its own.
215_JNU STORIES_2020.indd 312 06-10-2020 15:11:45

209
Creating Solidarities
Increasingly after 2004, Anjuman considered it vital to build broader

alliances both with student groups in JNU, and queer and feminist
organizations outside it. We continued exchanges on sexuality with all
students on campus, but we wished to open further channels with the
organized left, which seemed the most receptive to allying with minority
and marginalized struggles. In March 2005, we trooped through the
university grounds, from dhaba to dhaba, along with friends and allies,
behind a large rainbow flag, which Padmini and Sunandan held up. We
clipped pink paper triangles to our hearts, to commemorate Pink Triangle
day in honour of the symbol used to identify and shame homosexuals in
Nazi Germany, many of whom were exterminated in the Final Solution.
Shipra and Ankita handed out flyers about our march to those we
passed by. Joining us, among many others, were Mona Das, president
of the students’ union, revolutionary singers associated with the DSU,
feminists from Saheli, and even Vidrohi, the university’s resident poet
and conscience, who recited his verse aloud. Sometime later, we also
responded to a poster drawn up by the Indic Consolidation, a short-
VIII.2. Singing revolutionary songs on Pink Triangle Day, at Godavari dhaba, March 2005.
Photo courtesy: Mario Da Penha
215_JNU STORIES_2020.indd 313 06-10-2020 15:11:46

210
314 j nu stor i es
lived conservative group, which argued that homosexuality was never

problematic within ‘Indic’ traditions; in the way ‘Semitic’ ones saw it as
sinful. Our rejoinder challenged this intellectual flattening, and suggested
that the experiences of Dalits and women might serve to counter such
binaries. This drew cheers from many progressive quarters.
By early 2006, Anjuman joined Voices Against 377, a coalition of non-
profit and progressive groups in Delhi in support of Naz’s petition against
the law, which the Supreme Court reinstated in the Delhi High Court.
We contributed our experiences on campus in an affidavit to demonstrate
the continuing presence of the anti-sodomy statute as a barrier to free
expression. In March, the American president, George W. Bush, with two
wars in Afghanistan and Iraq under his belt, was due to make a state visit
to the national capital. Anjuman used the occasion to show how the sexual
torture of detainees at Abu Ghraib, the patriarchal ideology of saving
Afghan women from the Taliban, and muscular militarism remained at the
heart of Bush’s foreign policy. Bush’s support for Christian conservatives
also meant pulling federal funding from organizations that worked with sex
workers abroad, or advocated the use of condoms as the primary means of
preventing the spread of HIV. A group of us, along with other campaigners
from Naz and Voices marched in protest against Bush’s visit, carrying
the rainbow flag from Ramlila Maidan to Jantar Mantar, surrounded by
a sea of red, of banners and flags of trade unionists, and others from the
organized left. In April, we joined sit-ins and signed a letter in support
of the Narmada Bachao Andolan, which was protesting in Delhi against
the raising of the height of the Sardar Sarovar Dam in Gujarat.
However, there also emerged several other moments of rupture, of
the straining of solidarities, and of a failure to build alliances. During the
campus-wide debates over the presence of a restaurant run by Nestlé near
Tapti Hostel, Anjuman felt pulled between the reality that corporations in
a liberalized India offered safe spaces—internet cafes, coffee houses, and
clubs—to queer people, and the concomitant truth that many such spaces
were restricted to those of specific class, linguistic, and caste backgrounds,
as well as gender identities. At another time, we also drew disappointment
from friends in the SFI, who discreetly reported to us that our poster on
public executions for sexual crimes in Iran in 2005 (which we, and several
Western queer groups misinterpreted as punishments for sodomy) had
angered some of their Muslim constituents. We won no friends among
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211
Christian students when we challenged a fundamentalist group, Exodus

International, which was visiting JNU, on its history of spewing dangerous
anti-gay rhetoric, with no basis in the scriptures.
But perhaps, our most glaring failure was our inability to bring caste
and sexuality into an earnest dialogue with one another. By early 2006,
two groups working on caste issues emerged in JNU: the United Dalit
Students’ Forum (UDSF), and the Ambedkar Study Circle, in addition
to Insight, a student magazine. Bindu and I had conversations about how
we might go about this. We hoped to link historical attempts to break the
spatial barriers of caste, in the Temple Entry Movement, for instance, with
the breaching of heterosexual male citadels across the world. However,
by this time, many Anjuman members—Priya, Ponni, Padmini, Uditi, and
Kalyan among them—had graduated, and left Delhi. With our dwindling
numbers, and our focus on other affairs, this dialogue, sadly, remained
unfulfilled.
In 2010, after many of us had left Delhi and Anjuman’s activities at
the university had long ceased, I jumped with joy when I read about the
first openly gay candidate contesting student elections in JNU. Gourab
from the SFI, was later a member of a new queer group on campus called
Dhanak. In late 2018, I met Paresh, a graduate student of philosophy
at JNU, at a protest against the government’s new transgender bill in
Mumbai. They told me about organizing a third queer collective at the
university, delightfully named Hasratein. Over fifteen years after Anjuman
first began, with Section 377 now confined to the dustbin of history, it
fills my heart with happiness to know that the conversation on sexuality
continues. Satrangi salaam!
215_JNU STORIES_2020.indd 315 06-10-2020 15:11:46

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The Task and Implications of Decriminalizing Homosexual Sex in India
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My Events Human Rights and Global Justice, will moderate a discussion between several
panelists, including:
Anand Grover, Project Director of the HIV/AIDS Unit of Lawyer’s Collective in India, filed the challenge to section 377
on behalf of the Naz Foundation in Delhi High Court in 2001.
Mario D’Penha, queer feminist historian and activist, is a founding member of Anjuman and a member of Nigah. Both
organizations form part of Voices Against 377, a coalition of progressive organizations that intervened in the case
against section 377.
The panel will discuss the advocacy and litigation efforts that resulted in a ruling by the Delhi High Court that ruled
that the provision of Indian Penal Code section 377—that criminalizes homosexual sex between consenting adults in
private—is unconstitutional. The discussion will focus on the legal movement to protect LGBTI rights and
decriminalize homosexuality. The panel will also examine the challenges, themes, and tactics involved in litigating
cases in which domestic litigation is part of a broader international strategy to seek to promote LGBTI human rights.
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ANNEXURE P-9
THE CITIZENSHIP ACT, 1955

____________
ARRANGEMENT OF SECTIONS
____________
SECTIONS
1. Short title.
2. Interpretation.
ACQUISITION OF CITIZENSHIP
3. Citizenship by birth.
4. Citizenship by descent.
5. Citizenship by registration.
6. Citizenship by naturalization.
6A. Special provisions as to citizenship of persons covered by the Assam Accord.
6B. Special provisions as to citizenship of person covered by proviso to clause (b) of sub-section (1)
of section 2.
7. Citizenship by incorporation of territory.
OVERSEAS CITIZENSHIP
7A. Registration of Overseas Citizen of India Cardholder.
7B. Conferment of rights on Overseas Citizen of India Cardholder.
7C. Renunciation of Overseas Citizen of India Card.
7D. Cancellation of registration as Overseas Citizen of India Cardholder.
TERMINATION OF CITIZENSHIP
8. Renunciation of citizenship.
9. Termination of citizenship.
10. Deprivation of citizenship.
SUPPLEMENTAL
11. [Omitted.].
12. [Omitted.].
13. Certificate of Citizenship in case of doubt.
14. Disposal of application under sections 5, 6 and 7A.
14A. Issue of national identity cards.
15. Revision.
15A. Review.
16. Delegation of powers.
17. Offences.
1
214
SECTIONS
18. Power to make rules.
19. [Repealed.].
[THE FIRST SCHEDULE.] [Omitted.].
THE SECOND SCHEDULE.
THE THIRD SCHEDULE.
[THE FOURTH SCHEDULE.] [Omitted.].
2
215
THE CITIZENSHIP ACT, 1955
ACT No. 57 OF 19551
[30th December, 1955.]
An Act to provide for the acquisition and determination of Indian citizenship.
BE it enacted by Parliament in the Sixth Year of the Republic of India as follows:―
1. Short title.―This Act may be called the Citizenship Act, 1955.
2. Interpretation.―(1) In this Act, unless the context otherwise requires,―
(a) “a Government in India” means the Central Government or a State Government.
2
[(b) “illegal migrant” means a foreigner who has entered into India―
(i) without a valid passport or other travel documents and such other document or authority as
may be prescribed by or under any law in that behalf; or
(ii) with a valid passport or other travel documents and such other document or authority as
may be prescribed by or under any law in that behalf but remains therein beyond the permitted
period of time;]
3
[Provided that any person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian
community from Afghanistan, Bangladesh or Pakistan, who entered into India on or before the
31st day of December, 2014 and who has been exempted by the Central Government by or under
clause (c) of sub-section (2) of section 3 of the Passport (Entry into India) Act, 1920 (34 of 1920)
or from the application of the provisions of the Foreigners Act, 1946 (31 of 1946) or any rule or
order made there under, shall not be treated as illegal migrant for the purposes of this Act;]
(d) “Indian consulate” means the office of any consular officer of the Government of India where
a register of births is kept, or where there is no such office, such office as may be prescribed;
(e) “minor” means a person who has not attained the age of eighteen years;
[(ee) “Overseas Citizen of India Cardholder” means a person registered as an Overseas Citizen
4
of India Cardholder by the Central Government under section 7A;]

(f) “person” does not include any company or association or body of individuals, whether
incorporated or not;
(g) “prescribed” means prescribed by rules made under this Act;
5
* * * * *
(h) “undivided India” means India as defined in the Government of India Act, 1935, as originally
enacted.
(2) For the purposes of this Act, a person born aboard a registered ship or aircraft, or aboard an
unregistered ship or aircraft of the government of any country, shall be deemed to have been born in the
place in which the ship or aircraft was registered or, as the case may be, in that country.
(3) Any reference in this Act to the status or description of the father of a person at the time of that
person's birth shall, in relation to a person born after the death of his father, be construed as a reference to
the status or description of the father at the time of the father's death; and where that death occurred
1. This Act has been extended to the Union territory of Dadra and Nagar haveli, vide Notification No. S.O. 846, dated 17-3-
1962, Gazette of India, Extraordinary, Part II, sec. 3(ii), page 517. The Union territory of Goa, Daman and Diu vide
Notification No. S.O. 847, dated 17-3-1962, see ibid., and to Pondicherry with modification vide Notification No. G.S.R.
1557, dated 24-11-1962, Gazette of India, Part II, section 3(i).
2. Subs. by Act 6 of 2004, s. 2, for clauses (b) and (c) (w.e.f. 3-12-2004).
3. Ins. by Act 47 of 2019, s. 2 (w.e.f. 10-1-2020).
4. Subs. by Act 1 of 2015, s. 2, for clause (ee) (w.e.f. 6-1-2015).
5. Omitted by Act 32 of 2005, s. 2 (w.e.f. 28-6-2005).
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before, and the birth occurs after, the commencement of this Act, the status or description which would
have been applicable to the father had he died after the commencement of this Act shall be deemed to be
the status or description applicable to him at the time of his death.
(4) For the purposes of this Act, a person shall be deemed to be of full age if he is not a minor and of
full capacity if he is not of unsound mind.
ACQUISITION OF CITIZENSHIP
1
[3. Citizenship by birth.―(1) Except as provided in sub-section (2), every person born in India―
(a) on or after the 26th day of January, 1950, but before the 1st day of July, 1987;
(b) on or after the 1st day of July, 1987, but before the commencement of the Citizenship
(Amendment) Act, 2003 (6 of 2004) and either of whose parents is a citizen of India at the time of his
birth;
(c) on or after the commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004),
where―
(i) both of his parents are citizens of India; or
(ii) one of whose parents is a citizen of India and the other is not an illegal migrant at the time
of his birth,
shall be a citizen of India by birth.
(2) A person shall not be a citizen of India by virtue of this section if at the time of his birth―
(a) either his father or mother possesses such immunity from suits and legal process as is
accorded to an envoy of a foreign sovereign power accredited to the President of India and he or she,
as the case may be, is not a citizen of India; or
(b) his father or mother is an enemy alien and the birth occurs in a place then under occupation by
the enemy.]
4. Citizenship by descent.―2[(1) A person born outside India shall be a citizen of India by
descent,―
(a) on or after the 26th day of January, 1950, but before the 10th day of December, 1992, if his
father is a citizen of India at the time of his birth; or
(b) on or after the 10th day of December, 1992, if either of his parents is a citizen of India at the
time of his birth:
Provided that if the father of a person referred to in clause (a) was a citizen of India by descent only,
that person shall not be a citizen of India by virtue of this section unless―
(a) his birth is registered at an Indian consulate within one year of its occurrence or the
commencement of this Act, whichever is later, or, with the permission of the Central Government,
after the expiry of the said period; or
(b) his father is, at the time of his birth, in service under a Government in India:
Provided further that if either of the parents of a person referred to in clause (b) was a citizen of India
by descent only, that person shall not be a citizen of India by virtue of this section, unless―
(a) his birth is registered at an Indian consulate within one year of its occurrence or on or after the
10th day of December, 1992, whichever is later, or, with the permission of the Central Government,
after the expiry of the said period; or
(b) either of his parents is, at the time of his birth, in service under a Government in India:
1. Subs. by Act 6 of 2004, s. 3, for section 3 (w.e.f. 3-12-2004).

2. Subs. by s. 4, ibid., for sub-section (1) (w.e.f. 3-12-2004).
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Provided also that on or after the commencement of the Citizenship (Amendment) Act, 2003
(6 of 2004), a person shall not be a citizen of India by virtue of this section, unless his birth is registered at
an Indian consulate in such form and in such manner, as may be prescribed,―
(i) within one year of its occurrence or the commencement of the Citizenship (Amendment) Act,
2003(6 of 2004), whichever is later; or
(ii) with the permission of the Central Government, after the expiry of the said period:
Provided also that no such birth shall be registered unless the parents of such person declare, in such
form and in such manner as may be prescribed, that the minor does not hold the passport of another
country.
(1A) A minor who is a citizen of India by virtue of this section and is also a citizen of any other
country shall cease to be a citizen of India if he does not renounce the citizenship or nationality of another
country within six months of attaining full age.]
(2) If the Central Government so directs, a birth shall be deemed for the purposes of this section to
have been registered with its permission, notwithstanding that its permission was not obtained before the
registration.
(3) For the purposes of the proviso to sub-section (1), 1[any person] born outside undivided India who
was, or was deemed to be, a citizen of India at the commencement of the Constitution shall be deemed to
be a citizen of India by descent only.
5. Citizenship by registration.―2[(1) Subject to the provisions of this section and such other
conditions and restrictions as may be prescribed, the Central Government may, on an application made in
this behalf, register as a citizen of India any person not being an illegal migrant who is not already such
citizen by virtue of the Constitution or of any other provision of this Act if he belongs to any of the
following categories, namely:―
(a) a person of Indian origin who is ordinarily resident in India for seven years before making an
application for registration;
(b) a person of Indian origin who is ordinarily resident in any country or place outside undivided
India;
(c) a person who is married to a citizen of India and is ordinarily resident in India for seven
years before making an application for registration;
(d) minor children of persons who are citizens of India;
(e) a person of full age and capacity whose parents are registered as citizens of India under
clause (a) of this sub-section or sub-section (1) of section 6;
(f) a person of full age and capacity who, or either of his parents, was earlier citizen of
independent India, and 3[is ordinarily resident in India for twelve months] immediately before making
an application for registration;
(g) a person of full age and capacity who has been registered as an 4[Overseas Citizen of India
Cardholder] for five years, and who 5[is ordinarily resident in India for twelve months] before making
an application for registration.
Explanation 1.―For the purposes of clauses (a) and (c), an applicant shall be deemed to be ordinarily
resident in India if―
(i) he has resided in India throughout the period of twelve months immediately before making an
application for registration; and
(ii) he has resided in India during the eight years immediately preceding the said period of twelve
months for a period of not less than six years.
1. Subs. by Act 39 of 1992, s. 2, for “any male person”.

2. Subs. by Act 6 of 2004, s. 5, for sub-section (1) (w.e.f. 3-12-2004).
3. Subs. by Act 1 of 2015, s. 3, for “has been residing in India for one year” (w.e.f. 6-1-2015).
4. Subs. by s. 3, ibid., for “Overseas Citizen of India” (w.e.f. 6-1-2015).
5. Subs. by s. 3, ibid., for “has been residing in India for one year” (w.e.f. 6-1-2015).
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Explanation 2.―For the purposes of this sub-section, a person shall be deemed to be of Indian origin
if he, or either of his parents, was born in undivided India or in such other territory which became part of
India after the 15th day of August, 1947.]
1
[(1A) The Central Government, if it is satisfied that special circumstances exist, may after recording
the circumstances in writing, relax the period of twelve months, specified in clauses (f) and (g) and clause
(i) of Explanation 1 of sub-section (1), up to a maximum of thirty days which may be in different breaks.]
(2) No person being of full age shall be registered as a citizen of India under sub-section (1) until he
has taken the oath of allegiance in the form specified in the Second Schedule.
(3) No person who has renounced, or has been deprived of, his Indian citizenship or whose Indian
citizenship has terminated, under this Act shall be registered as a citizen of India under sub-section (1)
except by order of the Central Government.
(4) The Central Government may, if satisfied that there are special circumstances justifying such
registration, cause any minor to be registered as a citizen of India.
(5) A person registered under this section shall be a citizen of India by registration as from the date on
which he is so registered; and a person registered under the provisions of clause (b)(ii) of article 6 or
article 8 of the Constitution shall be deemed to be a citizen of India by registration as from the
commencement of the Constitution or the date on which he was so registered, whichever may be later.
2
[(6) If the Central Government is satisfied that circumstances exist which render it necessary to grant
exemption from the residential requirement under clause (c) of sub-section (1) to any person or a class of
persons, it may, for reasons to be recorded in writing, grant such exemption.].
6. Citizenship by naturalisation.―(1) Where an application is made in the prescribed manner by
any person of full age and capacity 3[not being an illegal migrant] for the grant of a certificate of
naturalisation to him, the Central Government may, if satisfied that the applicant is qualified for
naturalisation under the provisions of the Third Schedule, grant to him a certificate of naturalisation:
Provided that, if in the opinion of the Central Government, the applicant is a person who has rendered
distinguished service to the cause of science, philosophy, art, literature, world peace or human progress
generally, it may waive all or any of the conditions specified in the Third Schedule.
(2) The person to whom a certificate of naturalisation is granted under sub-section (1) shall, on taking
the oath of allegiance in the form specified in the Second Schedule, be a citizen of India by naturalisation
as from the date on which that certificate is granted.
4
[6A. Special provisions as to citizenship of persons covered by the Assam Accord.―(1) For the
purposes of this section―
(a) “Assam” means the territories included in the State of Assam immediately before the
commencement of the Citizenship (Amendment) Act, 1985 (65 of 1985);
(b) “detected to be a foreigner” means detected to be a foreigner in accordance with the
provisions of the Foreigners Act, 1946 (31 of 1946) and the Foreigners (Tribunals) Order, 1964 by a
Tribunal constituted under the said Order;
(c) “specified territory” means the territories included in Bangladesh immediately before the
commencement of the Citizenship (Amendment) Act, 1985 (65 of 1985);
(d) a person shall be deemed to be Indian origin, if he, or either of his parents or any of his
grandparents was born in undivided India;
1. Ins. by Act 1 of 2015, s. 3 (w.e.f. 6-1-2015).

2. Ins. by Act 6 of 2004, s. 5 (w.e.f. 3-12-2004).
3. Subs. by s. 6, ibid., for “who is not a citizen of a country specified in the First Schedule” (w.e.f. 3-12-2004).
4. Ins. by Act 65 of 1985, s. 2 (w.e.f. 7-12-1985).
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(e) a person shall be deemed to have been detected to be a foreigner on the date on which a
Tribunal constituted under the Foreigners (Tribunals) Order, 1964 submits its opinion to the effect
that he is a foreigner to the officer or authority concerned.
(2) Subject to the provisions of sub-sections (6) and (7), all persons of Indian origin who came before
the lst day of January, 1966 to Assam from the specified territory (including such of those whose names
were included in the electoral rolls used for the purposes of the General Election to the House of the
People held in 1967) and who have been ordinarily resident in Assam since the dates of their entry into
Assam shall be deemed to be citizens of India as from the lst day of January, 1966.
(3) Subject to the provisions of sub-sections (6) and (7), every person of Indian origin who―
(a) came to Assam on or after the lst day of January, 1966 but before the 25th day of March, 1971
from the specified territory; and
(b) has, since the date of his entry into Assam, been ordinarily resident in Assam; and
(c) has been detected to be a foreigner;
shall register himself in accordance with the rules made by the Central Government in this behalf under
section 18 with such authority (hereafter in this sub-section referred to as the registering authority) as may
be specified in such rules and if his name is included in any electoral roll for any Assembly or
Parliamentary constituency in force on the date of such detection, his name shall be deleted therefrom.
Explanation.―In the case of every person seeking registration under this sub-section, the opinion of
the Tribunal constituted under the Foreigners (Tribunals) Order, 1964 holding such person to be a
foreigner, shall be deemed to be sufficient proof of the requirement under clause (c) of this sub-section
and if any question arises as to whether such person complies with any other requirement under this sub-
section, the registering authority shall,―
(i) if such opinion contains a finding with respect to such other requirement, decide the question
in conformity with such finding;
(ii) if such opinion does not contain a finding with respect to such other requirement, refer the
question to a Tribunal constituted under the said Order hang jurisdiction in accordance with such
rules as the Central Government may make in this behalf under section 18 and decide the question in
conformity with the opinion received on such reference.
(4) A person registered under sub-section (3) shall have, as from the date on which he has been
detected to be a foreigner and till the expiry of a period of ten years from that date, the same rights and
obligations as a citizen of India (including the right to obtain a passport under the Passports Act, 1967 (15
of 1967) and the obligations connected therewith), but shall not entitled to have his name included in any
electoral roll for any Assembly or Parliamentary constituency at any time before the expiry of the said
period of ten years.
(5) A person registered under sub-section (3) shall be deemed to be a citizen of India for all purposes
as from the date of expiry of a period of ten years from the date on which he has been detected to be a
foreigner.
(6) Without prejudice to the provisions of section 8―
(a) if any person referred to in sub-section (2) submits in the prescribed manner and form and to
the prescribed authority within sixty days from the date of commencement of the Citizenship
(Amendment) Act, 1985 (65 of 1985), a declaration that he does not wish to be a citizen of India,
such person shall not be deemed to have become a citizen of India under that sub-section;
(b) if any person referred to in sub-section (3) submits in the prescribed manner and form and to
the prescribed authority within sixty days from the date of commencement of the Citizenship
(Amendment) Act, 1985(65 of 1985), or from the date on which he has been detected to be a
foreigner, whichever is later, a declaration that he does not wish to be governed by the provisions of
that sub-section and sub-sections (4) and (5), it shall not be necessary for such person to register
himself under sub-section (3).
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Explanation.―Where a person required to file a declaration under this sub-section does not have the
capacity to enter into a contract, such declaration may be filed on his behalf by any person competent
under the law for the time being in force to act on his behalf.
(7) Nothing in sub-sections (2) to (6) shall apply in relation to any person―
(a) who, immediately before the commencement of the Citizenship (Amendment) Act, 1985 (65
of 1985), is a citizen of India;
(b) who was expelled from India before the commencement of the Citizenship (Amendment) Act,
1985, under the Foreigners Act, 1946 (31 of 1946).
(8) Save as otherwise expressly provided in this section, the provisions of this section shall have
effect notwithstanding anything contained in any other law for the time being in force.]
1
[6B. Special provisions as to citizenship of person covered by proviso to clause (b) of sub-
section (1) of section 2.—(1) The Central Government or an authority specified by it in this behalf may,
subject to such conditions, restrictions and manner as may be prescribed, on an application made in this
behalf, grant a certificate of registration or certificate of naturalisation to a person referred to in the
proviso to clause (b) of sub-section (1) of section 2.
(2) Subject to fulfillment of the conditions specified in section 5 or the qualifications for
naturalisation under the provisions of the Third Schedule, a person granted the certificate of registration
or certificate of naturalisation under sub-section (1) shall be deemed to be a citizen of India from the date
of his entry into India.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2019, any
proceeding pending against a person under this section in respect of illegal migration or citizenship shall
stand abated on conferment of citizenship to him:
Provided that such person shall not be disqualified for making application for citizenship under this
section on the ground that the proceeding is pending against him and the Central Government or authority
specified by it in this behalf shall not reject his application on that ground if he is otherwise found
qualified for grant of citizenship under this section:
Provided further that the person who makes the application for citizenship under this section shall not
be deprived of his rights and privileges to which he was entitled on the date of receipt of his application
on the ground of making such application.
(4) Nothing in this section shall apply to tribal area of Assam, Meghalaya, Mizoram or Tripura as
included in the Sixth Schedule to the Constitution and the area covered under “The Inner Line” notified
under the Bengal Eastern Frontier Regulation, 1873 (Reg. 5 of 1873).]
7. Citizenship by incorporation of territory.―If any territory becomes a part of India, the Central
Government may, by order notified in the Official Gazette, specify the persons who shall be citizens of
India by reason of their connection with that territory; and those persons shall be citizens of India as from
the date to be specified in the order.
2
[OVERSEAS CITIZENSHIP
3
[7A. Registration of Overseas Citizen of India Cardholder.―(1) The Central Government may,
subject to such conditions, restrictions and manner as may be prescribed, on an application made in this
behalf, register as an Overseas Citizen of India Cardholder―
(a) any person of full age and capacity,―
(i) who is a citizen of another country, but was a citizen of India at the time of, or at any time
after the commencement of the Constitution; or
1. Ins. by Act 47 of 2019, s. 3 (w.e.f. 10-1-2020).

2. Ins. by Act 6 of 2004, s. 7 (w.e.f. 3-12-2004).
3. Subs. by Act 1 of 2015, s. 4, for sections 7A, 7B, 7C and 7D (w.e.f. 6-1-2015).
8
221
(ii) who is a citizen of another country, but was eligible to become a citizen of India at the
time of the commencement of the Constitution; or
(iii) who is a citizen of another country, but belonged to a territory that became part of India
after the 15th day of August, 1947; or
(iv) who is a child or a grandchild or a great grandchild of such a citizen; or
(b) a person, who is a minor child of a person mentioned in clause (a); or
(c) a person, who is a minor child, and whose both parents are citizens of India or one of the
parents is a citizen of India; or
(d) spouse of foreign origin of a citizen of India or spouse of foreign origin of an Overseas
Citizen of India Cardholder registered under section 7A and whose marriage has been registered and
subsisted for a continuous period of not less than two years immediately preceding the presentation of
the application under this section:
Provided that for the eligibility for registration as an Overseas Citizen of India Cardholder, such
spouse shall be subjected to prior security clearance by a competent authority in India:
Provided further that no person, who or either of whose parents or grandparents or great grandparents
is or had been a citizen of Pakistan, Bangladesh or such other country as the Central Government may, by
notification in the Official Gazette, specify, shall be eligible for registration as an Overseas Citizen of
India Cardholder under this sub-section.
(2) The Central Government may, by notification in the Official Gazette, specify the date from which
the existing persons of Indian Origin Cardholders shall be deemed to be Overseas Citizens of India
Cardholders.
Explanation.―For the purposes of this sub-section, “Persons of Indian Origin Cardholders” means
the persons registered as such under notification number 26011/4/98 F.I., dated the 19th August, 2002,
issued by the Central Government in this regard.
(3) Notwithstanding anything contained in sub-section (1), the Central Government may, if it is
satisfied that special circumstances exist, after recording the circumstances in writing, register a person as
an Overseas Citizen of India Cardholder.
7B. Conferment of rights on Overseas Citizen of India Cardholder.―(1) Notwithstanding
anything contained in any other law for the time being in force, an Overseas Citizen of India Cardholder
shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central
Government may, by notification in the Official Gazette, specify in this behalf.
(2) An Overseas Citizen of India Cardholder shall not be entitled to the rights conferred on a citizen
of India―
(a) under article 16 of the Constitution with regard to equality of opportunity in matters of public
employment;
(b) under article 58 of the Constitution for election as President;
(c) under article 66 of the Constitution for election as Vice-President;
(d) under article 124 of the Constitution for appointment as a Judge of the Supreme Court;
(e) under article 217 of the Constitution for appointment as a Judge of the High Court;
(f) under section 16 of the Representation of the People Act, 1950 (43 of 1950) in regard to
registration as a voter;
(g) under sections 3 and 4 of the Representation of the People Act, 1951 (43 of 1951) with regard
to the eligibility for being a member of the House of the People or of the Council of States, as the
case may be;
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(h) under sections 5, 5A and section 6 of the Representation of the People Act, 1951 (43 of 1951)
with regard to the eligibility for being a member of the Legislative Assembly or the Legislative
Council, as the case may be, of a State;
(i) for appointment to public services and posts in connection with affairs of the Union or of any
State except for appointment in such services and posts as the Central Government may, by special
order in that behalf, specify.
(3) Every notification issued under sub-section (1) shall be laid before each House of Parliament.
7C. Renunciation of Overseas Citizen of India Card.―(1) If any Overseas Citizen of India
Cardholder of full age and capacity makes in prescribed manner a declaration renouncing the Card
registering him as an Overseas Citizen of India Cardholder, the declaration shall be registered by the
Central Government, and upon such registration, that person shall cease to be an Overseas Citizen of
India Cardholder.
(2) Where a person ceases to be an Overseas Citizen of India Cardholder under sub-section (1), the
spouse of foreign origin of that person, who has obtained Overseas Citizen of India Card under clause (d)
of sub-section (1) of section 7A, and every minor child of that person registered as an Overseas Citizen of
India Cardholder shall thereupon cease to be an Overseas Citizen of India Cardholder.
7D. Cancellation of registration as Overseas Citizen of India Cardholder.―The Central
Government may, by order, cancel the registration granted under sub-section (1) of section 7A, if it is
satisfied that―
(a) the registration as an Overseas Citizen of India Cardholder was obtained by means of fraud,
false representation or the concealment of any material fact; or
(b) the Overseas Citizen of India Cardholder has shown disaffection towards the Constitution, as
by law established; or
(c) the Overseas Citizen of India Cardholder has, during any war in which India may be engaged,
unlawfully traded or communicated with an enemy or been engaged in, or associated with, any
business or commercial activity that was to his knowledge carried on in such manner as to assist an
enemy in that war; or
(d) the Overseas Citizen of India Cardholder has, within five years after registration under
sub-section (1) of section 7A, been sentenced to imprisonment for a term of not less than two years;
or
1
[(da) the Overseas Citizen of India Cardholder has violated any of the provisions of this Act or
provisions of any other law for time being in force as may be specified by the Central Government in
the notification published in the Official Gazette; or;]
(e) it is necessary so to do in the interests of the sovereignty and integrity of India, the security of
India, friendly relations of India with any foreign country, or in the interests of the general public; or
(f) the marriage of an Overseas Citizen of India Cardholder, who has obtained such Card under
clause (d) of sub-section (1) of section 7A,―
(i) has been dissolved by a competent court of law or otherwise; or
(ii) has not been dissolved but, during the subsistence of such marriage, he has solemnised
marriage with any other person.]]
1
[Provided that no order under this section shall be passed unless the Overseas Citizen of
India Cardholder has been given a reasonable opportunity of being heard.]
1. Ins. by Act 47 of 2019, s. 4 (w.e.f. 10-1-2020).
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TERMINATION OF CITIZENSHIP
8. Renunciation of citizenship.―(1) If any citizen of India of full age and capacity, 1***, makes in
the prescribed manner a declaration renouncing his Indian Citizenship, the declaration shall be registered
by the prescribed authority; and, upon such registration, that person shall cease to be a citizen of India:
Provided that if any such declaration is made during any war in which India may be engaged,
registration thereof shall be withheld until the Central Government otherwise directs.
(2) Where 2[a person] ceases to be a citizen of India under sub-section (1), every minor child of that
person shall thereupon cease to be a citizen of India:
Provided that any such child may, within one year after attaining full age, make a declaration 3[in the
prescribed form and manner] that he wishes to resume Indian citizenship and shall thereupon again
become a citizen of India.
4
* * * * *
9. Termination of citizenship.―(1) Any citizen of India who by naturalisation, registration
otherwise voluntarily acquires, or has at any time between the 26th January, 1950 and the commencement
of this Act, voluntarily acquired, the citizenship of another country shall, upon such acquisition or, as the
case may be, such commencement, cease to be a citizen of India:
Provided that nothing in this sub-section shall apply to a citizen of India who, during any war in
which India may be engaged, voluntarily acquires the citizenship of another country, until the Central
Government otherwise directs.
(2) If any question arises as to whether, when or how any 5[citizen of India] has acquired the
citizenship of another country, it shall be determined by such authority, in such manner, and having
regard to such rules of evidence, as may be prescribed in this behalf.
10. Deprivation of citizenship.―(1) A citizen of India who is such by naturalisation or by virtue
only of clause (c) of article 5 of the Constitution or by registration otherwise than under clause (b)(ii) of
article 6 of the Constitution or clause (a) of sub-section (1) of section 5 of this Act, shall cease to be a
citizen of India, if he is deprived of that citizenship by an order of the Central Government under this
section.
(2) Subject to the provisions of this section, the Central Government may, by order, deprive any such
citizen of Indian citizenship, if it is satisfied that―
(a) the registration or certificate of naturalisation was obtained by means of fraud, false
representation or the concealment of any material fact; or
(b) that citizen has shown himself by act or speech to be disloyal or disaffected towards the
Constitution of India as by law established; or
(c) that citizen has, during any war in which India may be engaged, unlawfully traded or
communicated with an enemy or been engaged in, or associated with, any business that was to his
knowledge carried on in such manner as to assist an enemy in that war; or
(d) that citizen has, within five years after registration or naturalisation, been sentenced in any
country to imprisonment for a term of not less than two years; or
(e) that citizen has been ordinarily resident out of India for a continuous period of seven years,
and during that period, has neither been at any time a student of any educational institution in a
country outside India or in the service of a Government in India or of an international organisation of
1. The words “who is also a citizen or national of another country” omitted by Act 6 of 2004, s. 8 (w.e.f. 3-12-2004).
2. Subs. by Act 39 of 1992, s. 3, for “a male person” (w.e.f. 10-12-1987).
3. Ins. by Act 6 of 2004, s. 8 (w.e.f. 3-12-2014).
4. Omitted by s. 8, ibid. (w.e.f. 3-12-2004).
5. Subs. by s. 9, ibid., for “person” (w.e.f. 3-12-2004).
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which India is a member, not registered annually in the prescribed manner at an Indian consulate his
intention to retain his citizenship of India.
(3) The Central Government shall not deprive a person of citizenship under this section unless it is
satisfied that it is not conducive to the public good that person should continue to be a citizen of India.
(4) Before making an order under this section, the Central Government shall give the person against
whom the order is proposed to be made notice in writing informing him of the ground on which it is
proposed to be made and, if the order is proposed to be made on any of the grounds specified in sub-
section (2) other than clause (e) thereof, of his right, upon making application therefore in the prescribed
manner, to have his case referred to a committee of inquiry under this section.
(5) If the order is proposed to be made against a person on any of the grounds specified in sub-section
(2) other than clause (e) thereof and that person so applies in the prescribed manner, the Central
Government shall, and in any other case it may, refer the case to a Committee of Inquiry consisting of a
chairman (being a person who has for at least ten years held a judicial office) and two other members
appointed by the Central Government in this behalf.
(6) The Committee of Inquiry shall, on such reference, hold the inquiry in such manner as may be
prescribed and submit its report to the Central Government; and the Central Government shall ordinarily
be guided by such report in making an order under this section.
SUPPLEMENTAL
11. [Commonwealth citizenship.]Omitted by Act The Citizenship (Amendment) Act, (6 of 2004),
s. 10 (w.e.f. 3-12-2004).
12. [Power to confer rights of Indian citizen or citizens of certain country.] Omitted by s. 10, ibid.
(w.e.f. 3-12-2004).
13. Certificate of Citizenship in case of doubt.―The Central Government may, in such cases as it
thinks fit, certify that a person with respect to whose citizenship of India a doubt exists, is a citizen of
India; and a certificate issued under this section shall, unless it is proved that it was obtained by means of
fraud, false representation or concealment of any material fact, be conclusive evidence that person was
such a citizen on the date thereof, but without prejudice to any evidence that he was such a citizen at an
earlier date.
14. Disposal of application under sections 5, 6 and 7A.―(1) The prescribed authority or the
Central Government may, in its discretion, grant or refuse an application under 1[sections 5, 6 and
7A] and shall not be required to assign any reasons for such grant or refusal.
(2) Subject to the provisions of section l5 the decision of the prescribed authority or the Central
Government on any such application as aforesaid shall be final and shall not be called in question in any
court.
2
[14A. Issue of national identity cards.―(1) The Central Government may compulsorily register
every citizen of India and issue national identity card to him.
(2) The Central Government may maintain a National Register of Indian Citizens and for that purpose
establish a National Registration Authority.
(3) On and from the date of commencement of the Citizenship (Amendment) Act, 2003 (6 of 2004),
the Registrar General, India, appointed under sub-section (1) of section 3 of the Registration of Births and
Deaths Act, 1969 (18 of 1969) shall act as the National Registration Authority and he shall function as the
Registrar General of Citizen Registration.
(4) The Central Government may appoint such other officers and staff as may be required to assist the
Registrar General of Citizen Registration in discharging his functions and responsibilities.
1. Subs. by Act 6 of 2004, s. 11, for “sections 5 and 6” (w.e.f. 3-12-2004).

2. Ins. by s. 12, ibid. (w.e.f. 3-12-2004).
12
225
(5) The procedure to be followed in compulsory registration of the citizens of India shall be such as
may be prescribed.]
15. Revision.―(1) Any person aggrieved by an order made under this Act by the prescribed authority
or any officer or other authority (other than the Central Government) may, within a period of thirty days
from the date of the order, make an application to the Central Government for a revision of that order:
Provided that the Central Government may entertain the application after the expiry of the said period
of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the
application in time.
(2) On receipt of any such application under sub-section (1), the Central Government shall, after
considering the application of the aggrieved person and any report thereon which the officer or authority
making the order may submit, make such order in relation to the application as it deems fit, and the
decision of the Central Government shall be final.
1
[15A. Review.―(1) Any person aggrieved by an order made by the Central Government, may,
within thirty days from the date of such order, make an application for review of such order:
Provided that the Central Government may entertain an application after the expiry of the said period
of thirty days, if it is satisfied that the applicant was prevented by sufficient cause from making the
application in time:
Provided further that an application for a review of an order passed in terms of the provisions of
section 14A shall be disposed of in the manner provided for in the procedure as may be laid down under
clause (ia) of sub-section (2) of section 18.
(2) On receipt of an application under sub-section (1), the Central Government shall, make such order
as it deems fit, and the decision of the Central Government on such review shall be final.]
16. Delegation of powers.―The Central Government may, by order, direct that any power which is
conferred on it by any of the provisions of this Act other than those of section 10 and section 18 shall, in
such circumstances and under such conditions, if any, as may be specified in the order, be exercisable also
by such officer or authority as may be so specified.
17. Offences.―Any person who, for the purpose of procuring anything to be done or not to be done
under this Act, knowingly makes any representation which is false in a material particular shall be
punishable with imprisonment for a term which may extend to 2[five years], or 3[with fine which may
extend to fifty thousand rupees], or with both.
18. Power to make rules.―(1) The Central Government may, by notification in the Official Gazette
make rules to carry out the purposes of this Act.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may
provide for―
(a) the registration of anything required or authorised under this Act to be registered, and the
conditions and restrictions in regard to such registration;
4
[(aa) the form and manner in which a declaration under sub-section (1) of section 4 shall be
made;];
(b) the forms to be used and the registers to be maintained under this Act;
(c) the administration and taking of oaths of allegiance under this Act and the time within which
and the manner in which, such oaths shall be taken and recorded;
(d) the giving of any notice required or authorised to be given by any person under this Act;
1. Ins. by Act 6 of 2004, s. 13, ibid. (w.e.f. 3-12-2004).

2. Subs. by s. 14, ibid., for “six months” (w.e.f. 3-12-2004)
3. Subs. by s. 14, ibid., for “with fine” (w.e.f. 3-12-2004)..
4. Ins. by s. 15, ibid. (w.e.f. 3-12-2004).
13
226
(e) the cancellation of the registration of, and the cancellation and amendment of certificates of
naturalisation relating to, persons deprived of citizenship under this Act, and the delivering up of such
certificates for those purposes;
1
[(ee) the manner and form in which and the authority to whom declarations referred to in clauses
(a) and (b) of sub-section (6) of section 6A shall be submitted and other matters connected with such
declarations;]
2
[(eei) the conditions, restrictions and manner for granting certificate of registration or certificate
of naturalisation under sub-section (1) of section 6B;]
3
[(eea) the conditions and the manner subject to which a person may be registered as an Overseas
Citizen of India Cardholder under sub-section (1) of section 7A;
(eeb) the manner of making declaration for renunciation of Overseas Citizen of India Card under
sub-section (1) of section 7C;]
(f) the registration at Indian consulates of the births and deaths of persons of any class or
description born or dying outside India;
(g) the levy and collection of fees in respect of applications, registrations, declarations and
certificates under this Act, in respect of the taking of an oath of allegiance, and in respect of the
supply of certified or other copies of documents;
(h) the authority to determine the question of acquisition of citizenship of another country, the
procedure to be followed by such authority and rules of evidence relating to such cases;
(i) the procedure to be followed by the committees of inquiry appointed under section 10 and the
conferment on such committees of any of the powers, rights and privileges of civil courts;
4
[(ia) the procedure to be followed in compulsory registration of the citizens of India under sub-
section (5) of section 14A;]
(j) the manner in which applications for revision may be made and the procedure to be followed
by the Central Government in dealing with such applications; and
(k) any other matter which is to be, or may be, prescribed under the Act.
(3) In making any rule under this section, the Central Government may provide that a breach thereof
shall be punishable with fine which may extend to one thousand rupees.
5
[Provided that any rule made in respect of a matter specified in clause (ia) of sub-section (2) may
provide that a breach thereof shall be punishable with imprisonment for a term which may extend to three
months, or with fine which may extend to five thousand rupees, or with both.]
6
[(4) Every rule made under this section shall be laid, as soon as may be after it is made before each
House of Parliament, while it is in session, for a total period of thirty days which may be comprised in
one session or in two or more successive sessions, and if, before the expiry of session, immediately
following the session or the successive sessions aforesaid, both Houses agree in making any modification
in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only
in such modified form or be of no effect, as the case may be; so, however, that any such modification or
annulment shall be without prejudice to the validity of anything previously done under that rule.]
19. [Repeals.] [Rep. by the Repealing and Amending Act, 1960 (58 of 1960), s. 2 and the First
Schedule.]
1. Ins. by Act 65 of 1985, s. 3 (w.e.f. 7-12-1985).

2. Ins. by Act 47 of 2019, s. 5 (w.e.f. 10-1-2020).
3. Ins. by Act 1 of 2015, s. 5 (w.e.f. 6-1-2015).
4. Ins. by Act 6 of 2004, s. 15 (w.e.f. 7-12-1985).
5. The proviso ins. by s. 15, ibid. (w.e.f. 3-12-2004).
6. Subs. by Act 4 of 1986, s. 2 and the Schedule for sub-section (4) (w.e.f. 15-5-1986).
14
227
[THE FIRST SCHEDULE.] [Omitted by Act the Citizenship (Amendment) Act, 2003 (6 of 2004), s.
16 (w.e.f. 3-12-2004).]
15
228
1
[THE SECOND SCHEDULE
[See sections 5(2) and 6(2)]
OATH OF ALLEGIANCE
I, A. B. _________ do solemnly affirm (or swear) that I will bear true faith and allegiance to the
Constitution of India as by law established, and that I will faithfully observe the laws of India and fulfill
my duties as a citizen of India.]
1. Subs. by Act 6 of 2004, s. 17, for the Second Schedule (w.e.f. 3-12-2004).
16
229
THE THIRD SCHEDULE
[See section 6(1)]
QUALIFICATIONS FOR NATURALISATION
The qualifications for naturalisation of a person 1*** are―
(a) that he is not a subject or citizen of any country where citizens of India are prevented by law
or practice of that country from becoming subjects or citizens of that country by naturalisation;
(b) that, if he is a citizen of any country, 2***;
(c) that he has either resided in India or been in the service of a Government in India or partly the
one and partly the other, throughout the period of twelve months immediately preceding the date of
the application;
3
[Provided that if the Central Government is satisfied that special circumstances exist, it may,
after recording the circumstances in writing, relax the period of twelve months up to a maximum of
thirty days which may be in different breaks.]
(d) that during the 4[fourteen years] immediately preceding the said period of twelve months, he
has either resided in India or been in the service of a Government in India, or partly the one and partly
the other, for periods amounting in the aggregate to not less than 5[eleven years];
6
[Provided that for the person belonging to Hindu, Sikh, Buddhist, Jain, Parsi or Christian
community in Afghanistan, Bangladesh or Pakistan, the aggregate period of residence or service of
Government in India as required under this clause shall be read as “not less than five years” in place
of “not less than eleven years”.]
(e) that he is of good character;
(f) that he has an adequate knowledge of a language specified in the Eighth Schedule to the
Constitution; and
(g) that in the event of a certificate of naturalisation being granted to him, he intends to reside in
India, or to enter into, or continue in, service under a Government in India or under an international
organisation of which India is a member or under a society, company or body of persons established
in India:
Provided that the Central Government may, if in the special circumstances of any particular case it
thinks fit,―
(i) allow a continuous period of twelve months ending not more than six months before the date
of the application to be reckoned, for the purposes of clause (c) above, as if it had immediately
preceded that date;
(ii) allow periods of residence or service earlier than 7[fifteen years] before the date of the
application to be reckoned in computing the aggregate mentioned in clause (d) above.
1. Subs. by Act 6 of 2004, s. 18, for “who is not a citizen of a country specified in the First Schedule” (w.e.f. 3-12-2004).
2. Subs. by s. 18, ibid., for “he has renounced the citizenship of that country in accordance with the law therein in force in
that behalf and has notified such renunciation to the Central Government” (w.e.f. 3-12-2004).
3. The proviso ins. by Act 1 of 2015, s. 6 (w.e.f. 6-1-2015).
4. Subs. by Act 6 of 2004, s. 18, for “twelve years” (w.e.f. 3-12-2004).
5. Subs. by s. 18, ibid., for “nine years” (w.e.f. 3-12-2004).
6. The proviso ins. by Act 47 of 2019, s. 6 (w.e.f. 10-1-2020).
7. Subs. by Act 6 of 2004, s. 18, for “thirteen years” (w.e.f. 3-12-2004).
17
230
[THE FOURTH SCHEDULE.] Omitted by the Citizenship (Amendment) Act, 2005 (32 of 2005), s. 5
(w.e.f. 28-6-2005).
18
231
ANNEXURE P-10
232
233
234
235
236
237
238
239
240
241
242
243
244
245
246
247
248
Annexure P-11 (Colly)
249
TO, Dated: __.__.2021

01 03
The Director (CPIO),
Sh. Vishnu Kumar Sharma,
Ministry of External Affairs,
Room No. 3, Patiala House Annexe,
Consular, Passport and Visa Division,
Ministry of External Affairs, Tilak Marg,
New Delhi- 110001
A. Contact Details:
1. Name of the Applicant: Mario Leslie Dpenha
2. Gender: Male
3. Father’s Full Name: Leslie Dpenha
4. Address for Correspondence 506 Maheshwar Niketan, Kolbad Road, Thane –
400 601, Maharashtra
5. Tel. No 9167751110
6. E-mail ID: mario.dpenha@gmail.com
7. Whether a citizen of India Yes
B. Details of information sought:
1.Nature of information sought
2.Type of information required
(a)Copy of documents No
(b) Inspection of records No

250
(c) Sample of material No
(d) Other information Yes
3. (a) Whether information sought
relates to third party?
(b) If yes his/her name & address N.A
4. Information Sought :
(1) A spouse of foreign origin of an OCI card Holder is qualified to apply for an
OCI card under Clause (d) of Section 7A of the Citizenship Act, 1955 if the
marriage has been registered and has subsisted for a continuous period of at
least two years preceding the presentation of the application. I request you to
provide information on what is meant by ‘registered’ under Section 7A(d) of
the Citizenship Act, i.e:
(i) Whether the marriage between the OCI card holder and spouse of
foreign origin must be validly registered under the law in force of the
country where the marriage was solemnized? or
(ii) Whether the marriage between the OCI card holder and spouse of
foreign origin must be registered under Section 4 or Section 17 of the
Foreign Marriage Act, 1969? (Prima facie, marriages under the
Foreign Marriage Act appear to require atleast one party to be an
Indian citizen, and I seek information on a fact situation where one
party is an OCI Card Holder and the other is a foreigner); or
(iii) Whether the marriage between the OCI card holder and spouse of
foreign origin must be registered under any other law for the time
being in force in India, and if so, which law?

251
Since Section 7A of the Citizenship Act is silent on all these issues and since
the Ministry of Overseas Indian Affairs which dealt with all matters relating to
Indian Diaspora around the world has been merged with the Ministry of
External Affairs, I request you to provide answers to these questions. I have
requested you, the Consular, Passport and Visa Division for this information
as the “Guide to Consular Services” available on the website of Ministry of
External Affairs says that you can assist OCI Cardholders under special
circumstances. Hence, I have directed this query pertaining to OCI
cardholders to you.
(2) Under Section 23 of the Foreign Marriage Act, the Central Government is
empowered to declare that marriages solemnized under the law in force in a
particular foreign country as a valid marriage in India if it is satisfied that the
law in the said foreign country contains provisions similar to those contained
in the Foreign Marriage Act. In this regard, I request you to provide
information on whether the Central Government has declared the marriage
laws of any such foreign country as valid under Indian law under Section 23?
If so, which foreign countries’ marriages laws and marriages solemnized
thereunder, have been recognized as valid under Indian law?
(3) If the information sought above is not available to the posted Public
Information Office, I request you to transfer it to the concerned
Department/CPIO/PIO/Department/ Ministry.
(4) I Undertake to pay any other charges including Photo copy charges as and
when asked by your office as per the law.

252
5. Time period for which information is required N.A.
6. Whether applicant belongs to BPL category: No
7. Details of fee paid Rs. 10. (Rupees ten only) by postal order no. __________
392001
issued by __________________________
POST OFFICE HAUZ KHAS 01.03.2021
dated _________________.
I.I.T. GATE NEW DELHI
(__________)
Applicant
TRUE COPY /-
253
TO, Dated: __.__.2021

01 03
Central Public Information Officer,
North Block,
New Delhi-110001
A. Contact Details:
2. Gender: Male
5. Tel. No 9167751110

254
country where the marriage was solemnized? Or
you, the MHAare the nodal authority for OCI, I request you to provide
answers to these questions.

255
392002
POST OFFICE HAUZ KHAS,

issued by __________________________ 01.03.2021
dated _________________.
I.I.T. GATE, NEW DELHI
(__________)
Applicant
TRUE COPY/-
256
TO, Dated: 01
__.__.2021
03
Foreigners Division,
National Stadium, India Gate,
New Delhi, Delhi-110001
A. Contact Details:
2. Gender: Male
5. Tel. No 9167751110

257
country where the marriage was solemnized? or
you, the MHA, Foreigners Division are the nodal authority for OCI, I request
you to provide answers to these questions.

258
392003
POST OFFICE HAUZ KHAS,
issued by __________________________ dated _________________.
01.03.2021
I.I.T GATE, NEW DELHI
(__________)
Applicant
TRUE COPY/-
259
ANNEXURE P- 12 (Colly)
Vishnu Kumar Sharma Room No. 3, CPV Division

Director (CPV) & CPIO Ministry of External Affairs
Tel: 23388015 Patiala House Annexe
E-mail: dircpv@mea.gov.in Tilak Marg, New Delhi- 01
No. R-41/Dir(CPV)/2021 10-03-2021
To
Mr. Mario Leslie Dpenha

506 Maheshwar Niketan,
Kolbad Road, Thane,
Maharashtra- 400601
Subject: Reply of application for Information sought under RTI Act

2005.
Sir,
Reference your RTI application dated 01.03.2021.
2. The RTI application is being transferred to Ministry of Home

Affairs under Section 6 (3) (ii) of the RTI Act, 2005 as the subject matter
pertains to them. You are requested to contact MHA for further
correspondence in the matter.
Also note that the Postal Order No. 392002 for Rs 10 as

mentioned in your letter has not been received in this office. You are
therefore, requested to send the same to the CPIO in Foregners Division
of Ministry of Home Affairs.
3. This disposes of your RTI application.

260
4. Appeal against this decision, if any, may be filed within 30 days
of receipt of this communication before Mr. Devesh Uttam, JS (CPV)
and First Appellate Authority, CPV Division, Ministry of External
Affairs, Room No. 20, Patiala House Annexe, Tilak Marg New Delhi-
110001.
Yours faithfully,
(Vishnu Kumar Sharma)
Copy to:-
Shri Manoj Kumar Jha, DS (Foreigners) and CPIO, Foreigners Division,

MHA, Major Dhyan Chand National Stadium Gate No. 7, New Delhi-
110001. Email: mk.jha65@nic.in
TRUE COPY/-
261
R.T.I. Matter
F.No.26011/RTI/08/2021-OCI
Government of India
Ministry of Home Affairs
(Foreigners Division)
1st Floor, Major Dhyan Chand National Stadium,

India Gate Circle, New Delhi-110002.
Dated, the 16th March, 2021.
To
506, Maheshwar Niketan,
Kolbad Road, Thane,
Maharashtra : 400601
Subject: Information sought under the Right to Information Act,

2005 - regarding.
Dear Sir,
Please refer to your RTI application No. MHOME/R/P/21/00395

and MHOME/R/P/21/00396 dated 09.03.2021.
2. For the information sought in Point No. 1, it is intimated that

Information sought by you is in the form of query/ seeking opinion,
clarification and hence it does not constitute information as defined in
section 2(f) of the RTI Act, 2005. However, you may refer to the OCI
cardholder brochure, which may be accessed through the website link:
https://www.mha.gov.in/sites/default/files//Brochure_OCI_15112019.p
df

information sought closely relates to the Ministry of External Affairs.
262
Therefore, it is being transferred to Ministry of External Affairs under
Section 6(3) of the RTI Act, 2005.
4. Shri Anil Malik, Additional Secretary (Foreigners), Foreigners

Division, MDC National Stadium, India Gate, New Delhi-110002 is the
First Appellate Authority to whom first appeal may be preferred within
statutory time limit.
Yours sincerely,
(Pramod Kumar)
Director (F)/CPIO
Ph. No. 23077508
Copy to:-
1. The Joint Secretary (CPV Division), Ministry of External Affairs,

Patiala House Annexe, Tilak Marg, New Delhi with a request to
provide information in respect of Point No. 2 directly to the
applicant.
2. PPS to Director (F) & CPIO with the request to upload the copy
of this letter on RTI-MIS portal.
3. US (RTI), MHA, North Block. New Delhi.
TRUE COPY/-
263
ANNEXURE P- 13(Colly)
R.T.I. Matter
F.No.26011/RTI/15/2021-OCI
Government of India

Dated, the 30 March, 2021.
To,
Kolbad Road, Thane,
Maharashtra : 400601
Subject: Information sought under the Right to Information Act, 2005 -

regarding.
Dear Sir,
Please refer to your RTI applications dated 01.03.2021 received in this

Ministry after being transferred from Ministry of External Affairs on 10.03.2021.
2. For the information sought in Point No. 1, it is intimated that Information

sought by you is in the form of query/ seeking opinion, clarification and hence it
does not constitute information as defined in section 2(f) of the RTI Act, 2005.
However, you may refer to the OCI cardholder brochure, which may be accessed
through the website link: https://www.mha.gov.

information sought closely relates to the Ministry of External Affairs. Therefore,
264
it is being transferred to Ministry of External Affairs under Section 6(3) of the
RTI Act, 2005.
4. Shri Anil Malik, Additional Secretary (Foreigners), Foreigners Division,

MDC National Stadium, India Gate, New Delhi-110002 is the First Appellate
Authority to whom first appeal may be preferred within statutory time limit.
Yours sincerely.
(Pramod Kumar)
Director (F)/CPIO
Ph. No. 23077508
Copy to:-
1. The Joint Secretary (CPV Division), Ministry of External Affairs, Patiala

House Annexe, Tilak Marg, New Delhi alongwith a copy of the RTI
application with a request to provide information in respect of Point No. 2
directly to the applicant.
2. PPS to Director (F) & CPIO with the request to upload the copy of this
letter on RTI-MIS portal.
True copy/-
265
R.T.I. Matter
F.No.26011/RTI/14/2021-OCI
Government of India

Dated, the 30th March. 2021.
To
Kolbad Road, Thane,
Maharashtra: 400601
Subject: Information sought under the Right to Information Act, 2005 -

regarding.
Dear Sir,
Please refer to your RTI applications dated 01.03.2021.
2. For the information sought in Point No. 1, it is intimated that Information

sought by you is in the form of query/ seeking opinion, clarification and hence it
does not constitute information as defined in section 2(f) of the RTI Act, 2005.
However, you may refer to the OCI cardholder brochure, which may be accessed
through the website link: https://www.mha.gov.

information sought closely relates to the Ministry of External Affairs. Therefore,
it is being transferred to Ministry of External Affairs under Section 6(3) of the
RTI Act, 2005.
266
4. Shri Anil Malik, Additional Secretary (Foreigners), Foreigners Division,
MDC National Stadium, India Gate, New Delhi-110002 is the First Appellate
Authority to whom first appeal may be preferred within statutory time limit.
Yours sincerely.
(Pramod Kumar)
Director (F)/CPIO
Ph. No. 23077508
Copy to:-
1. The Joint Secretary (CPV Division), Ministry of External Affairs, Patiala

House Annexe, Tilak Marg, New Delhi along with a copy of the RTI
application with a request to provide information in respect of Point No. 2
directly to the applicant.
2. PPS to Director (F) & CPIO with the request to upload the copy of this
letter on RTI-MIS portal.
True copy/-
267
ANNEXURE P- 14
Vishnu Kumar Sharma Room No. 3, CPV Division
Director (CPV) & CPIO Ministry of External Affairs
Tel: 23388015 Patiala House Annexe
Email:- dircpv@mea.gov.in Tilak Marg, New Delhi- 01
No. R-47/Dir (CPV)/2021

31-03-2021
To
Mario Leslie Dpenha
Kolbad Road, Thane,
Mahrashtra: 400601
Subject: Reply of application for Information sought under RTI Act

2005.
Sir,
Reference your two RTI applications No.

MHOME/R/P/21/00395 and No. MHOME/R/P/21/00396 dated
09.03.2021 received in this office on 26.03.2021.
2. The information as sought is not available in this Division.

However, your RTI application is being transferred to Legislative
Department of Ministry of Law and Justice under section 6 (3) (ii) of the
RTI Act, 2005. You are requested to contact Legislative Department of
Ministry of Law and Justice directly for further correspondence in the
matter.
3. This disposes of your RTI application.
4. Appeal against this decision, if any, may be filed within 30 days

of receipt of this communication before Mr. Devesh Uttam, JS ( CPV)
268
and First Appellate Authority, CPV Division, Ministry of External
Affairs, Room No. 20, Patiala House Annexe, Tilak Marg, New Delhi-
110001.
Yours faithfully,
(Vishnu Kumar Sharma)
Copy to:
Shri PC Meena, Deputy Secretary and (CPIO), Room No. 728-A, A

Wing, Legislative Department, Ministry of Law and Justice, Shastri
Bhawan, New Delhi-110001
TRUE COPY/-
Annexure P-15
Frequently Asked Questions (FAQs)
269
1. Who is eligible to apply?
A foreign national, who was eligible to become a citizen of India on

26.01.1950 or was a citizen of India on or at anytime after 26.01.1950 or
belonged to a territory that became part of India after 15.08.1947 and his/her
children and grand children, is eligible for registration as an Overseas
Citizen of India (OCI). Minor children of such person are also eligible for
OCI. However, if the applicant had ever been a citizen of Pakistan or
Bangladesh, he/she will not be eligible for OCI.
2. Who was eligible to become Citizen of India on 26.01.1950?
Any person who, or whose parents or grand-parents were born in

India as defined in the Government of India Act, 1935 (as originally
enacted), and who was ordinarily residing in any country outside India was
eligible to become citizen of India on 26.01.1950.
3. Which territories became part of India after 15.08.1947 and from

what date?
The territories which became part of India after 15.08.1947 are:
(i) Sikkim 26.04.1975

(ii) Pondicherry 16.08.1962
(iii) Dadra & Nagar Haveli 11.08.1961
(iv) Goa, Daman and Diu 20.12.1961
4. Can the spouse of the eligible person apply for OCI?
Yes, if he/she is eligible in his/her own capacity.
5. Can Minor children apply for OCI?
Yes, if either of the parents is eligible for OCI.

270
6. In what form should a person apply for an OCI and where are the
forms available?
A family consisting of spouses and upto two minor children can apply
in the same form i.e. Form XIX, which can be filed online or downloaded
from our website http://mha.nic.in/ForeigDiv/ForeigHome.html.
7. Can application form be filled and submitted on line?
Yes. Part A of the application form should be filed online. Part B

should be downloaded and printed on computer or by hand in Block letters.
Printed Part A and Part B of the application form has to be submitted to the
Indian Mission/Post/Office along with all requisite documents.
8. What documents have to be submitted with the application?
The following documents shall be enclosed for each applicant:
1. Proof of present citizenship
2. Evidence of self or parents or grand parents,
(a) being eligible to become a citizen of India at the time of

commencement of the Constitution; or
(b) belonging to a territory that became a part of India after
15 th August, 1947; or
(c) being a citizen of India on or after 26 th January, 1950
These could be:
(i) Copy of the passport :or

(ii) Copy of the domicile certificate issued by the Competent
authority ;or
(iii) Any other proof substantiating the request. Usually
applicants are able to submit a certificate of residence or
place of birth of self/parents/grand parents from First
Class Magistrate/District Magistrate (DM) of the
concerned place.
3. Evidence of relationship as parent/grand parent, if their Indian
origin is claimed as basis for grant of OCI such as birth certificate or
Educational Certificate etc.
271
4. Application fee by way of Demand Draft (US $ 275 for each

applicant or equivalent in local currency; US $ 25 or equivalent
In local currency for each PIO card holder) in case of
application filled in India, fee Rs.15,000/- for general category,
for PIO card holders Rs.1,400/- and for minor PIO card holder
Rs.8,000/- to be paid by way of Demand Draft.
5. PIO card holders should submit a copy of his/her PIO card.
9. What documents would qualify for “Any other proof” for

evidence of self or parents or grand parents being eligible for
grant of an OCI?
Any documentary evidence like a school certificate, Agricultural land

ownership certificate, birth certificate etc. by which eligibility may be
reasonably ascertained.
10. How many copies of application have to be submitted?
Only one Set of Application has to be submitted for each applicant.
11. Whether applicant(s) have to go in person to submit the

application (s)?
No. Application(s) can be sent by post either by Speed post or

Registered post only and not through Courier.
12. Whether the applicant (s) have to take oath before the Counsel of
the Indian Mission/Post?
No. Earlier provision in this regard has been done away with.
13. Where to submit the application?
To the Indian Mission/ Post of the country of citizenship of the

applicant. If the applicant is not in the country of citizenship, to the Indian
Mission/Post of the country where he is ordinarily residing. If the applicant
is in India, to the FRRO Amritsar, Bangalore, Kozhikode, Chennai, Kochi,
Delhi, Goa, Hyderabad, Lucknow, Mumbai, Kolkota, and
Thiruvanathapuram as per specified Jurisdiction of the FRRO concerned.
272
14. Can a person apply in the country where he is ordinarily
residing?
Yes.
15. What are the consequences of furnishing wrong information or

suppressing material information?
All the applications will be subject to pre or post enquiry depending

on whether any adverse information is voluntarily reported in the application
or not. If the Government comes to the know that any false information was
furnished or material information was suppressed, the registration as OCI
already granted shall be cancelled by an order under section 7D of the
Citizenship Act, 1955. The persons will also be blacklisted thereby banning
his/her entry into India.
16. What is the fee for application for registration as an OCI?
US $ 275 or equivalent in local currency for each applicant. In case of

PIO card holder, US $ 25 or equivalent in local currency for each applicant.
In case of application filled in India, fee Rs.15,000/- for general category, for
PIO card holders Rs.1,400/- and for minor PIO card holder Rs.8,000/- to be
paid by way of Demand Draft.
17. What is the time taken for registration as OCI?
Within 30 days of the application, if there is no adverse information

available against the applicant. If any adverse information is available
against the applicant, the decision to grant or otherwise is taken within 120
days.
18. If the registration as an OCI is not granted, what amount will be

refunded?
An amount of US $ 250 or equivalent in local currency shall be

refunded, if registration is refused. US $ 25 is the processing fees, which is
non-refundable. In case application filled in India, Rs.1,400/- will be non-
refundable being processing fees.
273
19. Can a PIO Cardholder apply?
Yes, provided he/she is otherwise eligible for grant of OCI like any
other applicant.
20. Will the PIO Cardholder be granted an OCI registration gratis?
No. He/she has to make a payment of US $ 25 or equivalent in local

currency along with the application & Rs.1,400/- in case of application is
filled in India.
21. Will the PIO card be honored till the time it is valid even after
acquisition of an OCI?
No. PIO card will have to be surrendered to the Indian

Mission/Post/FRROs before collection of OCI registration certificate and an
OCI ‘U’ visa sticker.
22. What will be issued after registration as an OCI?
A registration certificate in the form of a booklet will be issued and a

multiple entry, multi-purpose OCI ‘U’ visa sticker will be pasted on the
foreign passport of the applicant. For this purpose, the applicant has to
produce the original passport to the Indian Mission/Post/FRROs after
receipt of the acceptance letter/verifying the status of the application online.
23. Will a separate OCI passport be issued?
No.
24. Will a duplicate certificate of registration as an OCI will be

issued?
Yes. For this purpose, an application has to be made to the Indian

Mission/Post with evidence for loss of certificate. In the case of
mutilated/damaged certificate an application has to be made enclosing the
same. The applications in both the cases to be submitted to the concerned
Indian Mission/ Post/FRRO along with payment of a fee of US $ 100 or
equivalent in local currency & Rs.5,500/- in case of application is filled in
India.
274
25. Will a new OCI visa sticker be pasted on the new foreign passport
after the expiry of the old passport?
Yes. On payment of requisite fee, a new OCI ‘U’ visa sticker will be
issued. However, the applicant can continue to carry the old passport
wherein the OCI ‘U’ visa sticker was pasted along with new passport for
visiting India without seeking a new visa, as the visa is lifelong.
26. Will the applicant lose his citizenship after registering as an OCI?
No.
27. Can a person registered as an OCI travel to protected

area/restricted area without permission?
No. He/she will be required to seek PAP/RAP for such visits.
28. Would the Indian civil/criminal laws be applicable to persons

registered as OCI?
Yes, for the period OCI is living in India.
29. Can a person registered as an OCI be granted Indian citizenship?
Yes. As per the provisions of section 5(1) (g) of the Citizenship Act,
1955, a person who is registered as an OCI for 5 years and is residing in
India for 1 year out of the above 5 years, is eligible to apply for Indian
Citizenship.
30. Will an OCI be granted gratis to certain categories of people?
No.
275
31. Can OCI be granted to foreign nationals who are not eligible for
OCI, but married to persons who are eligible for OCI?
No.
32. Will foreign-born children of PIOs be eligible to become an OCI?
Yes, provided one of the parents is eligible to become an OCI.
33. What are the benefits of an OCI?
Following benefits will be allowed to an OCI:
(i) Multiple entry, multi-purpose life long visa to visit India;

(ii) Exemption from reporting to Police authorities for any length of
stay in India; and
(iii) Parity with NRIs in financial, economic and educational fields
except in the acquisition of agricultural or plantation properties.
(iv) Registered Overseas Citizen of India shall be treated at par with Non-
Resident-Indian in the matter of inter-country adoption of Indian children.
(v) Registered Overseas Citizens of India shall be treated at par with resident
Indian nationals in the matter of tariffs in air fares in domestic sectors in
India.
(vi) Registered Overseas Citizens of India shall be charged the same entry fee as
domestic Indian visitors to visit national parks and wildlife sanctuaries in
India
(vii) Parity with Non-Resident Indian in respect of entry fees to be charged for
visiting the national monuments, historical sites and museums in India;
Pursuing the following professions in India, in pursuance of the provisions
contained in the relevant Acts, namely:-
(a) doctors, dentists, nurses and pharmacists;
(b) advocates;
(c) architects;
(d) chartered accountants;
(viii) Parity with Non-Resident Indian to appear for the All India Pre-medical Test
or such other tests to make them eligible for admission in pursuance of the
provisions contained in the relevant Acts.
(ix) “State Governments should ensure that the OCI registration booklets of
OCIs are treated as their identification for any services rendered to them. In
case proof of residence is required, Overseas Citizens of India may give an
276
affidavit attested by a notary public stating that a particular/specific address
may be treated as their place of residence in India and may also in their
affidavit give their overseas residential address as well as e-mail address, if
any”
34. Will any other benefit be granted to an OCI?
Any other benefits to an OCI will be notified by the Ministry of

Overseas Indian Affairs (MOIA) under Section 7B(1) of the Citizenship
Act, 1955.
35. Is the OCI entitled to voting rights?
No.
36. Is the OCI entitled to hold constitutional post in India?
No.
37. Is the OCI entitled to hold Government posts in India?
No, except for the posts specified by an order by the Central

Government.
38. If a person is already holding more than one nationality, can

he/she apply for OCI?
Yes.
39. What are the advantages of the OCI when compared to PIO
cardholders ?
(i) An OCI is entitled to life long visa with free travel to India
whereas for a PIO card holder, it is only valid for 15 years.
(ii) A PIO cardholder is required to register with local Police authority
for any stay exceeding 180 days in India on any single
visit whereas an OCI is exempted from registration with Police
authority for any length of stay in India.
(iii) An OCI gets a specific right to become an Indian Citizen as per Section
5(i) and (ii) of the Citizenship Act, 1955.
277
whereas the PIO card holder does not have this.
40. Whether an OCI be entitled to apply for and obtain a normal

Indian passport which is given to a citizen of India?
No. Indian Passports are given only to Indian citizen.
41. Whether nationals of Commonwealth countries are eligible for the

OCI?
Yes, if they fulfill the eligibility criteria.
42. Can a person renounce OCI?
Yes. He/she has to declare intention of renunciation in Form XXII to the

Indian Mission/Post where OCI registration was granted. After receipt of the
declaration, the Indian Mission/Post/FRROs shall issue an acknowledgement in
Form XXII A.
43. Do the applicants who have applied on the earlier prescribed

application form have to apply again in the new form?
No. All such applications will be considered for registration as an OCI

without seeking fresh applications and fees.
44. Can an OCI holder undertake Research work in India?
Yes, after getting prior approval/special permission from MHA.
45. Whether foreign military personnel are eligible for grant of OCI?
NO, foreign military personnel either in service or retired are not entitled for
grant of OCI.
46. Whether civil Govt. servant working in Ministry of Defence as IT

engineers/civil contractors entitled for OCI?
NO.
278
C.M.A. NO. _____ OF 2021
IN
IN THE MATTER OF:
Mr. Joydeep Sengupta & Ors. … PETITIONERS
VERSUS
APPLICATION UNDER SECTION 151 OF THE CODE OF

CIVIL PROCEDURE, 1908 SEEKING PERMISSION TO FILE
LENGTHY SYNOPSIS & LIST OF DATES
1. Vide the accompanying Writ Petition under Article 226 of the

Constitution of India, the Applicants/Petitioners seek inter alia,
a declaration that a same-sex spouse of foreign origin of an
Indian Citizen or Overseas Citizen of India (‘OCI’) cardholder is
entitled to apply for registration as an Overseas Citizen of India
under Section 7A(1)(d) of the Citizenship Act, 1955, and the
legal recognition of all same-sex or non-heterosexual marriages
under the applicable statutes in India, especially secular
legislations for marriage. The Petitioners No. 1 and 2 are
married in New York, with Petitioner No.1 being an Overseas
Citizen of India, and Petitioner No.2 being his American
279
husband. The Petitioner No.3 is an Indian citizen and queer
rights activist. The Applicants/Petitioners seek marriage equality
as an essential part of the fundamental rights to equality, life and
freedom.
2. The Applicants pray that the accompanying Writ Petition be

considered as a part and parcel of this application and crave
leave of this Hon’ble Court to refer and rely upon the same. The
detailed facts and contents of the accompanying Writ Petition
have thus not been reproduced herein for the sake of brevity.
3. The Applicants have shortened the list of dates and synopsis as

much as possible. However, on account of the complexity of
facts and the length of time under examination, the present list
of dates and synopsis are necessary to provide this Hon’ble
Court a holistic view of the case so that complete justice is done
to the Applicants. It is for this reason that the Applicants pray
for an exemption from filing lengthy synopsis & list of dates.
4. That the present application has been filed bona fide and in the
interest of justice.
PRAYER
In view of the above, it is respectfully prayed that this Hon'ble Court
may be pleased to:
(a) Allow the present application and permit the Applicants to file
lengthy synopsis and list of dates; AND
280
(b) Pass such further and other orders as the court may deem fit in
the circumstances of the present case may require.
APPLICANTS
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
281
C.M.A.NO. _________OF 2021 IN
1 4
282
Identified
283
C.M.A. NO. _____ OF 2021
IN
IN THE MATTER OF:
Mr. Joydeep Sengupta & Ors. … PETITIONERS
VERSUS
APPLICATION UNDER SECTION 151 OF THE CODE OF

CIVIL PROCEDURE, 1908 FOR EXEMPTION FROM FILING
OF ORIGINAL/CERTIFIED/DIM/ LEGIBLE/TRUE TYPED
COPIES OF THE ANNEXURES
1. Vide the accompanying Writ Petition under Article 226 of the

Constitution of India, the Applicants/Petitioners seek inter alia, a
declaration that a same-sex spouse of foreign origin of an Indian
Citizen or Overseas Citizen of India (‘OCI’) cardholder is
entitled to apply for registration as an Overseas Citizen of India
under Section 7A(1)(d) of the Citizenship Act, 1955, and the
legal recognition of all same-sex or non-heterosexual marriages
under the applicable statutes in India, especially secular
legislations for marriage. The Petitioners No. 1 and 2 are
284
married in New York, with Petitioner No.1 being an Overseas
Citizen of India, and Petitioner No.2 being his American
husband. The Petitioner No.3 is an Indian citizen and queer
rights activist. The Applicants/Petitioners seek marriage equality
as an essential part of the fundamental rights to equality, life and
freedom.
2. The Applicants pray that the accompanying Writ Petition be

considered as a part and parcel of this application and crave
leave of this Hon’ble Court to refer and rely upon the same. The
detailed facts and contents of the accompanying Writ Petition
have thus not been reproduced herein for the sake of brevity.
3. That various annexures have been filed to substantiate the

Applicants’/Petitioners’ pleadings, and are vital for a complete
appreciation of the facts and circumstances of the present case.
Through the present application the Applicants are seeking
exemption from filing original/certified/dim/ legible/ true typed
copies of the annexures annexed with the Petition due to paucity
of time and considering the situation of the Covid pandemic.
Also due to the fact that the matter requires urgent attention. It is
submitted that should the original/clear/certified copies of any of
the annexures be required by this Hon’ble Court at any stage of
the proceedings, the Applicants will produce them forthwith.
4. That the present application is bona fide and in the interest of

justice.
285
PRAYER
In view of the above, it is respectfully prayed that this Hon'ble Court

may be pleased to:
(a) Exempt the Applicants from filing

Original/Certified/Dim/Legible/True Typed copies of the
Annexures
(b) Pass any other/orders which this Hon’ble Court may kindly
deem fit and proper in the interest of justice.
APPLICANTS
THROUGH COUNSEL
Karuna Nundy
+91-9818258357
Date:05.07.2021
Place: New Delhi
286
C.M.A.NO. _________OF 2021 IN
1 4
287
Identified
288
Email:-karuna.nundy@gmail.com
PETITIONER NO. 1
289
Email:- karuna.nundy@gmail.com
PETITIONER NO. 2
290
Email :- karuna.nundy@gmail.com
(M) 9818258357 PETITIONER NO. 3
291
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Is s ue D ate & Ti me : 04-JUL-2021 13:23:14

Name of The Acc : RAGINI NAGPAL
Locati on : NCT OF DELHI
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Name of Li ti gant : MR JOYDEEP SENGUPTA & ORS
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05/07/2021 Gmail - Advance Service of W.P.- Mr. Joydeep Sengupta & Ors. Vs. Union of India & Ors.
Muskan Tibrewala <muskanmt13@gmail.com>
Advance Service of W.P.- Mr. Joydeep Sengupta & Ors. Vs. Union of India & Ors.
Utsav Mukherjee <utsav2395@gmail.com> 5 July 2021 at 11:19

To: mohammedmuqeem@gmail.com, cg.newyork@mea.gov.in, kirtimansingh.cgsc@gmail.com
Cc: Karuna Nundy <karuna.nundy@gmail.com>, Ragini Nagpal <ragininagpal01@gmail.com>, Muskan Tibrewala
<muskanmt13@gmail.com>, Abhay Chitravanshi <advabhaychitravanshi@gmail.com>, Ruchira Goel
<ruchiragoel@gmail.com>
Dear Sir/Ma'am,
I’m addressing this email to you on behalf of Ms. Karuna Nundy, Counsel for the Petitioners- Mr. Joydeep Sengupta, Mr.
Russell Blaine Stephens and Mr. Mario Leslie Dpenha for advance service of the writ petition in the fresh matter, Mr.
Joydeep Sengupta & Ors. Vs. Union of India & Ors. before the Hon'ble High Court of Delhi. Please take notice that the
Registrar has allowed this matter to be listed for tomorrow, i.e. 06.07.2021.
Best Regards,
Utsav Mukherjee,
Associate Adv.,
Chambers of Ms. Karuna Nundy,
Advocate, Supreme Court of India
10.43am FINAL WRIT PETITION JOYDEEP & ORS (1).pdf
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IN THE HIGH COURT OF DELHI AT NEW DELHI

(EXTRAORDINARY CIVIL WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. _____ OF 2021

IN THE MATTER OF:

Mr. Joydeep Sengupta & Ors. …PETITIONERS

Union of India & Ors. …RESPONDENTS

3. Memo of Parties 4-5

4. Synopsis and List of Dates 6-20

5. Writ Petition under Article 226 of the

11. Annexure P-6 (COLLY)

12. Annexure P- 7(COLLY)

13. Annexure P-8

14. Annexure P-9

16. Annexure P-11 (COLLY)

17. Annexure P-12 (COLLY)

18. Annexure P-13(colly)

21 C.M.A.NO. ____OF 2021

25 Proof of Service 292

2. Consulate General of India, New York, through Consul General.

WRIT PETITION (CIVIL) NO. _____ OF 2021

IN THE MATTER OF:

Mr. Joydeep Sengupta & Ors. …PETITIONERS

Union of India & Ors. …RESPONDENTS

WRIT PETITION (CIVIL) NO. _____ OF 2021

IN THE MATTER OF:

Mr. Joydeep Sengupta & Ors. …PETITIONERS

Union of India & Ors. …RESPONDENTS

1. Mr. Joydeep Sengupta

2. Mr. Russell Blaine Stephens

3. Mr. Mario Leslie Dpenha

R/o 506 Maheshwar Niketan,

2. Consulate General of India, New York

ALL SERVED THROUGH THE STANDING COUNSEL (CIVIL)

The present Petition seeks inter alia, a declaration that a spouse of

Joydeep Sengupta and Blaine Stephens, Petitioners 1&2, are preparing

Blaine Stephens is Mr. Sengupta’s husband and Petitioner No. 2. He is

Petitioner No.3, Mario Dpenha , is an Indian citizen, a queer rights

"Queer" in the present petition is used as an inclusive, umbrella term for

(i) may not conform to the fixed, socially prescribed categories of

OCI CARD FOR “SPOUSE” UNDER THE CITIZENSHIP ACT,

Section 7A(1)(d) of the Citizenship Act, 1955 entitles a spouse of

The Respondent No. 2 is the concerned Indian mission/post which

It is an equally settled principle of law that the Court cannot supply a

RECOGNITION OF SAME-SEX AND/ OR QUEER MARRIAGE

It is also well settled that where there’s a void in domestic law on an

The right to equality and equal protection of laws under Article 14 as

(iv) Section 39(7) of the Insurance Laws (Amendment) Act, 2015,

Thus, it is most respectfully submitted that upholding the fundamental

In the words of Petitioner No.3, Mr. Mario Leslie Dpenha:

This equal dignity before the law — either as the decriminalization of

05.07.2021 Hence the present petition.

2011 The Petitioner No. 1, a Canadian citizen became an OCI

15th November, The Ministry of Home Affairs, Foreigners Division released

21st October, The MHA had vide notification no. 25022/24/2020-F.V./F.I

10th March, The MHA, Foreigners Division replied to the RTI by

05.07.2021 HENCE THIS WRIT PETITION

IN THE MATTER OF:

WRIT PETITION UNDER ARTICLE 226 OF THE

(I) A DECLARATION THAT SECTION 7A(1)(D) OF THE

(II) A DECLARATION THAT TO THE EXTENT THE FOREIGN