The apex court documented the Centre's commitment to establishing a committee to explore the rights, benefits that could be extended to queer couples.
On 11 May, the Bench reserved its verdict on the pleas after a 10-day marathon hearing. (Creative Commons)
My partner and I eagerly followed the Chief Justice of India’s statements during the verdict. Initially, we were thrilled and hopeful, discussing how this change would positively impact us as a queer couple. However, as the proceedings continued, it became evident that there was no reason to celebrate. Our fight for equal rights was far from over, and it’s an ongoing battle
Jayant, a queer man and co-founder of the Hyderabad-based non-profit Queer Nilayam, after the judgement
On Tuesday, 17 October, the LGBTQIA+ community held high hope that the Supreme Court of India would officially acknowledge same-sex marriages.
However, the court did not recognise these unions, leading to disappointment within the community. Instead, the apex court said that the responsibility for according such recognition lies with the legislature.
The Supreme Court documented the Union government’s commitment to establishing a committee to explore the rights and benefits that could be extended to queer couples.
Chief Justice of India DY Chandrachud emphasised that the court’s role is to interpret existing laws, not to create them. He noted that it is the prerogative of the Parliament to amend the Special Marriage Act. This verdict was delivered while addressing 21 petitions seeking legal validation for same-sex marriages.
“We are deeply disappointed by the judgement today. Though the court has reiterated that queer people have the right to form relationships, they stopped well short of legal recognition. On a personal level, we feel proud that we fought this battle. Though we lost, lots of dinner table conversations were initiated because of this case. We remain hopeful that one day, we will have full marriage equality,” one of the petitioners, Supriyo Chakraborty, said on X.
We are deeply disappointed by the judgment today. Though the court has reiterated that queer people have right to form relationships, they stopped well short of legal recognition.
On a personal level, we feel proud that we fought this battle Though we lost, lots of dinner table… pic.twitter.com/NGqcrZzntX— Supriyo Chakraborty (@c_supriyo) October 17, 2023
For queer individuals in the country, despite the challenges they’ve faced in the past and the recent disappointment, their hopes remain undiminished. They are determined to push forward and advocate for their rights with a fresh, pragmatic approach, seeking validation through parliamentary action.
“The Supreme Court not granting marriage equality rights and even rights to form civil unions/domestic partnerships is not very heartening. We may well need to now go back again to our elected representatives to advocate for our rights,” noted transgender rights activist Vyjayanti Vasanta Mogli, another one of the petitioners, tells South First.
Jayant says that this verdict would have made a significant difference for queer couples. “Many people are disheartened by the political aspects of this situation. Numerous organisations and individuals have invested considerable effort in advancing this case, and we were all eagerly anticipating the outcome,” says Jayant.
Vice-President of Chennai-based Solidarity and Action Against The HIV Infection in India (SAATHII), Dr L Ramakrishnan sees the judgement as “old wine in a new bottle”.
Dr L Ramakrishnan. (Supplied)
“The Supreme Court hasn’t come up with anything substantial, beyond recognising that people of any gender have the right to live together as consenting adults (which was already there in the 2018 Navtej Johar verdict). Neither marriage nor civil unions are in the offing,” Dr Ramakrishnan tells South First.
Hyderabad-based transgender Buddhist monk Tashi Choedup says that the current judgement direction aligns with the underlying principles of the Navtej Johar judgement in 2018.
“While this recent verdict provides a more explicit stance on discrimination and awareness, it also offers crucial guidance to law enforcement agencies, particularly in cases of violence within families,” Tashi tells South First.
Tashi further adds that the verdict lacks specific timeframes for government actions, including the committee’s recommendations. Since the 2018 judgement, minimal progress has been made in society and the legal landscape in this regard.
“It is evident that the success of any committee’s recommendations depends on the government’s willingness to enforce them and their track record suggests opposition to progressive changes,” says Tashi.
Adam Pasha. (Supplied)
To Karnataka’s first drag queen Adam Pasha, the judgement is disappointing.
“I was expecting at least a civil union. But as an individual who has been in the community for a long time, I respect the Supreme Court’s decision. Their hands are tied. We have faced these hurdles before in the past. It’s nothing new to us. But as a community, we are resilient and persistent. We are not going to stop here,” Pasha tells South First.
Pasha, who is also the Ambassador to HRH Maharaja of Rajpipla Manvendra Singh Gohil for South India, says, “Life throws us these challenges but we know we can overcome them and this is just one of those.”
“The only way to overcome this, I feel, is by allowing us to speak to our current politicians because the chief justice has passed this on to Parliament. And that means our politicians. So, we have to take this up with them and see what they do. We are changing with time and people are more welcoming and open-minded. So there’s hope,” Pasha adds.
Stylist and fashion choreographer Sunil Menon, who is also an LGBTQIA+ activist, is looking at the verdict from a very pragmatic point of view. Menon says that no legal setback is forever.
“We’ll all need to study the judgement(s) very carefully and find spaces in the interstices to rebuild, going forward. Looking at the verdict from a very pragmatic point of view, what it should and will do is motivate the community across the country to come together and get stronger in putting forth the set of requirements to the government so that the LGBTQIA+ community benefits at large,” Menon tells South First.
Sunil Menon (Supplied)
Menon further says that marriage is just one of the many aspects. “My priorities are education, employment, and housing. These are the biggest issues and stumbling blocks in the progress of the LGBTQIA+ community,” he adds.
He says that there is pressure for a verdict to legalise same-sex marriage. “But I also feel that such a verdict will benefit the privileged section of the community. A privileged person in the community needs same-sex marriage legalisation because of issues around assets and insurance and all the other benefits that come with a marriage. I understand that but the larger population of LGBTQIA+ have more burning issues like education, employment, and housing. Only once you tick those boxes, will I personally think of moving on to the next issue, which is marriage, adoption, and having kids. For now, all these issues are on the back burner for me.”
Meanwhile Human Rights Activist from Kerala Sheetal Shyam says that the judgement reflects a lack of progressiveness and a very conservative mindset. “It has ignited a desire for another fight, as we strive to raise our voices and challenge the system,” Sheetal tells South First.
“When heterosexual couples can marry outside their religions and caste, the judges believe same-sex marriage goes against tradition, reflecting a conservative mindset. This disappointing ruling from the apex court, the highest authority in the country for justice, fails to deliver the much-needed justice that our society requires,” Sheetal adds.
Jaya. (Supplied)
Jaya, General Manager at Sahodaran, an agency that works for the third gender, says that the recent verdict didn’t legalise same-sex marriage or grant adoption rights, which is a significant concern. However, the recommendations regarding raising awareness about LGBTQIA+ issues among law enforcement and government officials, both at the Union and state levels, are positive steps.
“While it’s not a complete victory, it reflects a changing mindset, with hopes of achieving acceptance and expectations for further progress in the future. The goal is to attain same-sex marriage rights, which would alleviate stigmatisation, ease the hardships faced by LGBTQIA+ individuals in society, and offer dignity in educational and workplace settings. Marriage equality could pave the way for adoption rights in the future, although it might take time. The LGBTQIA+ community is determined to persevere, much like the struggle to repeal IPC 377,” Jaya, who is also an LGBTQIA+ activist, tells South First.
Rose Venkatesan. (Pinterest)
However, Chennai-based transwoman and human right activist Rose Venkatesan is sceptical about the decision going into the hands of the government and Parliament.
“We have been waiting for a positive judgement, but the Supreme Court has passed it on to the Parliament and, now, it is for the government to decide, which I am sure will take ages to decide. We have a right-wing government that is already opposed to gay marriage rights. It is disappointing,” Rose tells South First.
For Bengaluru-based transwoman Nitra M Jayaraj, the judgement is a starting point. “It is very unfortunate that the verdict was not favourable. But it is a start — with a 3-2 decision, which proves 40 percent support,” Nitra tells South First.
Nitra M Jayaraj
Nitra further says that she fails to understand how we Indians can worship a God born from two male Gods and dismiss humans who are like that.
“It is a human right violation to deprive this privilege. This disparity towards trans persons is not Indian culture and this is adopted from the Europeans, as per Christian rules. But now, the Pope has also taken a stand in favour of the trans community, stating that they too are the children of God and the Church should be compassionate to them. I hope the future generations are spared from this disparity,” adds Nitra.
For Sheetal, the judges’ awareness regarding the problems of the community and even discussion of adoption is the way forward.
“The Supreme Court acknowledged that the community is subjected to police harassment and deemed it wrong, showing thoughtfulness and understanding. They also recognised the need for change,” says Sheetal.
On the other hand, they were against the idea that homosexuality is modern, acknowledging the fact that it exists in villages too. They strongly opposed such relationships, leading to a division among the five judges, with only two taking a more progressive stance, Sheetal adds.
While some are hopeful, many others are critical of what the Union government will do.
Dr Ramakrishnan says that he doesn’t think taking it to Parliament is going to be fruitful, “we already have heard the government’s views during the hearing — they were overwhelmingly homophobic.”
With a similar point of view, Senthil, the Program Director of Queer Chennai Chronicles, says, “We have already seen homophobic, queerphobic, and transphobic comments from Parliamentarians.”
“So it is highly questionable how the law will be formed, now that the buck has been passed to Parliament. The Supreme Court is there to protect the law and to ensure constitutional rights of individuals. We already know how adoption is difficult for heterosexual folks. Many queer persons want to adopt so we need to look into this. Trans people can marry under the existing laws, but where do the non-binary folks fall because they have not been included?” asks Senthil.
With scepticism, Senthil says that he doesn’t trust the present government to have an open dialogue. “They have been homophobic. This is a dead end and we are not going to get anything out of this,” he adds.
“Decriminalisation itself took a long time — almost 18 years. Sensitisation is the most part of handling the case — judges or lawyers. Representing the community as well as those against, one needs to be sensitised. The directions given by Justice Chandruchud is appreciable but directions are just directions. The queer community seeks marriage, wants to adopt a child, etc. So there should definitely be rights reserved for that,” says Senthil.
Tashi Choedup. (Supplied)
For Tashi, the government’s opposition likely stems from deeply ingrained issues such as homophobia, transphobia, ignorance, and an unwillingness to learn.
“Furthermore, a government that is antagonistic toward various minority groups is unlikely to support the LGBTQIA+ community, which challenges traditional systems related to marriage and family,” says Tashi.
This government is focused on maintaining power, even if it means perpetrating harm and it does not view LGBTQIA+ individuals as a significant vote bank. Their policies and manifestos largely overlook the rights of queer and trans people, effectively erasing their existence in the eyes of the government, adds Tashi.
“The government’s stance reflects its desire to maintain a rigid, normative view of the world, one that LGBTQIA+ individuals do not conform to. This outlook leads to the denial of rights and recognition for these marginalised communities,” says Tashi.
Adding to this, Nadika Nadja, a writer and researcher belonging to the LGBTQIA+ community, tells South First, “It is right that the Parliament as a legislative body should enact the law and the judiciary should uphold these rights. But the way it has happened, it is disappointing. Why did we then have to go to the Constitution Bench in the first place? Why did they not say that this is a constitutional right?”
“Nadika adds, “We saw in the NALSA judgement that the Supreme Court was happy to protect the rights of the trans community. It had directed the government to pass specific laws to protect the rights. It didn’t say we will refer it to create a law. There is gap in how it is operating in NALSA and how it is operating here. This is not high priority right now for the Parliament with the elections coming up.”
Tejas. (Supplied)
Chennai-based Tejas says that consensual queer union has always been around, only suppressed.
“Our country has a rich heritage and history with multiple instances of queer union across various cultures. As much as it’s disheartening to see this being suppressed legally, I just want to put it out there that no kind of law, or society or culture can come in the way of two souls coming together regardless of gender, sexuality or race. If it’s meant to happen, it will,” Tejas tells South First.
May 01, 2024
Apr 30, 2024
Apr 30, 2024
Apr 29, 2024
Apr 29, 2024
Apr 29, 2024
