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In the wake of the Indian Supreme Court’s recent refusal to legalize gay marriage, Nitika Khaitan — a fellow of the Carr Center for Human Rights Policy and Safra Center for Ethics — hosted a study group Thursday on the history of LGBTQ+ rights in India.
The session was part of a series of study groups that Khaitan, a criminal defense lawyer, has hosted about the complex history of marriage equality activism in India. At Thursday’s session, Khaitan discussed an array of landmark cases on the issue, including the recent decision on gay marriage and the 2018 decision by India’s high court that held unconstitutional a longtime statute criminalizing consensual same-sex relations.
The study group traced what Khaitan calls “the convoluted path” that led to these decisions, which Khaitan said includes other judicial cases, a series of activist discussions, and cultural norms.
“I really wanted a study group that focused in on the debates and the activism behind the headlines,” Khaitan said in an interview following the study group. “Remind ourselves that even the act of engaging with the law was not a necessary thing or an inevitable thing, right? There were lots of debates that shaped that. And those debates, I think, are essential.”
While debates and discussions surrounding these issues have been documented since before 2009, Khaitan called the recent ruling against marriage equality in India a “huge setback.”
“To have a five judge bench of the Supreme Court categorically say that they're not going to extend marriage equality to queer persons means that that direct issue is something that you can't raise again for a while,” Khaitan said.
Khaitan said the ruling could be a continuation of “issues that are more systemic and more structural,” and that are going to require people to “do a lot more than just go to court and ask for a declaration of constitutional rights.”
Khaitan said she hopes her study groups will give people a space where they can discuss social change, continue asking questions, and reflect on their own experiences, despite potentially being far from home.
“It was really great to be able to talk about this in ways that hopefully resonate with people who are generally thinking about the law and social change,” Khaitan said. “There were also a lot of people who did come, who are much more intimately and personally affected by this.”
“It’s also great to be able to sit and just have a full idea of delving deep into these issues, and in some ways, encouraging all of us to ask the same questions that a lot of these activists have been asking over several years,” she added.
The final session of Khaitan’s study group will take place on Dec. 1, featuring Utkarsh Saxena, a lawyer on the recent marriage equality case and an alumnus of Harvard Law School and Kennedy School.
“I’m really excited about being able to discuss a lot of these debates around marriage equality petitions with him and what his own thinking was and how he navigated that,” Khaitan said.
