Last week, the Indian government notified a committee headed by the cabinet secretary and comprising secretaries from the ministries of home, law, women and child development, health and family welfare, and social justice and empowerment to “examine the various issues relating to the queer community”.

This is in keeping with the Supreme Court (SC)’s directions delivered last year in Supriyo v. Union of India, which found marriage to not be a constitutional right guaranteed to the LGBTQIA+ community in consenting adult relationships.

Last week, the Indian government notified a committee headed by the cabinet secretary and comprising secretaries from the ministries of home, law, women and child development, health and family welfare, and social justice and empowerment to “examine the various issues relating to the queer community”.

This is in keeping with the Supreme Court (SC)’s directions delivered last year in Supriyo v. Union of India, which found marriage to not be a constitutional right guaranteed to the LGBTQIA+ community in consenting adult relationships.

The terms of reference of this committee are narrow: It may examine and submit recommendations on measures to be taken by the Centre and states to ensure that there is no discrimination in access to goods and services or social welfare entitlements; that the queer community does not face any threat of violence, harassment or coercion; that queer persons are not subjected to involuntary medical treatments, surgeries; and to create modules to cover the mental health of queer persons. The committee is also at liberty to work with experts and suggest recommendations on any other subject it deems fit.

This committee composition is significant, as it makes it easier to coordinate between departments, call for information, frame recommendations and ensure implementation.

However, its cited mandates exclude some aspects expressly ordered by the SC in 2023, including advance directives and succession rights. The current extent of the mandate has already been secured in small measures by government orders and high court judgments. There have been a series of judgments and even a parliamentary law — the Transgender Persons (Protection of Rights) Act, 2019 — which protects transgender persons from involuntary medical treatment and assures social welfare measures. To be sure, implementing these measures needs to be more secure, efficient and uniform.

Yet, the government order omissions are notable.

Based on the mandates that are written down in the order, the committee is not required to ponder over the LGBTQIA+ communities’ demand for recognition of relationships, marriage or partnerships — these now lie within the Parliament’s domain. The committee is required to look into measures taken by the government to address discrimination in access to goods and services, as well as welfare schemes, but it is not mandated to address discrimination faced by LGBTQIA+ communities at the workplace, schools or even intimate spaces, such as the family. While the queer person may nominate their partner in financial assets like mutual funds, insurance or fixed deposits, the nominee receives the amount as a representative of other legal heirs such as parents or siblings. It will require a herculean effort for the partner to probate the will before the court, which includes producing witnesses to the will and in some cases, a handwriting expert to secure the entire amount. This would likely lead to never-ending and expensive court cases. The housing, financial security and steady income for the partner aren't the stated remit of the committee. Nor is adoption or surrogacy for the queer couple.

Also, the committee is unlikely to seek reports from the police or dating app companies about sex extortion scams — a continuing distress for members of the community, who are blackmailed into silence by fear of stigma, shame or threats of violence.

Effectively then, what is gained?

Additionally, the recommendations of the committee are not binding. The states may or may not accept any recommendation in those areas where the state’s powers are supreme, like education or health. The committee report may form the basis for seeking mandamus from various high courts in narrow fields like public health or public employment, which is already shrinking. There may be no advancement in non-discrimination or financial security for queer persons.

After a struggle of decades, the LGBTQIA+ community won the battle to decriminalise their identity, and this long journey waits for better documentation and storytelling. It involved forming alliances, meetings with victims of violence, police officers, politicians and government officials, collecting documentation, and testimonies, drafting petitions, archival research, representations, and preparing daily transcripts and funding. This journey finally culminated on September 6, 2018, in the Navtej Johar and Others v Union of India judgment, which led to the reading down of Section 377.

Let's not forget that rights are precarious, and need to be bolstered. In 2022, Justice Clarence Thomas of the United States Supreme Court called for Lawrence vs Texas, a 2003 case that led to the decriminalisation of homosexuality in the country, to be overruled. While Navtej is secure for now, the underlying rationale and passages in the same-sex marriage decision (Supriyo) could be used as grounds for challenging Navtej.

This may be a good time for the LGBTQIA+ community to reflect on the journey and to strategise on the way ahead. The fact that LGBTQIA+ rights form part of the manifestos of some political parties is a positive development. Another option for the community is to make representations before this committee. The queer archivist, then, in the future must resist the urge to only document the representations and notifications of the committee. The bureaucratisation of LGBTQIA+ rights in 2024 must not stall the progress of demands for non-discrimination and recognition of same-sex relationships.

Vasuman Khandelwal is an advocate practicing before the Supreme Court and has been involved in litigation against Section 377. The views expressed are personal.