On 17th October, 2023, a historic verdict was given on same-sex marriage where the Supreme Court ruled out that there cannot be a legal recognition for same-sex marriage by a 3-2 majority. Justice D.Y. Chandrachud said there was a degree of “agreement and disagreement on how far we have to go” on same-sex marriages. We will keep fighting- Petitioner and activist
One of the petitioners and activist Anjali Gopalan said in an interview, “We have been fighting for long and will keep doing so. Regarding adoption also nothing was done, what the CJI said was very good regarding adoption but it’s disappointing that other justices didn’t agree…this is democracy but we are denying basic rights to our own citizens” Queer is a natural phenomenon: CJI
Chief Justice D.Y. Chandrachud said that Queer is a natural phenomenon known to India for ages; It is neither urban nor elitist.
The CJI further added that the gender of a person is not the same as their sexuality. “If a transgender person is in a heterosexual relationship, such a marriage is recognized by the law,” he said.
CJI held that unmarried couples, including queer couples, can jointly adopt a child.
To fight discrimination, the CJI directed the Union Government, State Governments and Union Territories to ensure there is no discrimination in access to goods and services and to sensitise the public about queer rights, to create a hotline for queer community, to create safe houses for queer couples, and to ensure inter-sex children are not forced to undergo operations.
The CJI concluded that the court can neither strike down or read words into the Special Marriage Act to include same sex members within the ambit of the 1954 law. It is up to the Parliament and State legislature to enact laws on marriage.
At the same time, the CJI said the relationship of marriage is not a static one. He held that queer persons have an equal right and freedom to enter a “union.”
What did the other judges say?
1.Justice Kaul said same-sex relationships have been recognized from antiquity, not just for sexual activities but as relationships for emotional fulfilment and that Special Marriage Act is violative of Article 14, equality before law. Justice Kaul, concluding his judgement said a legal recognition of non-heterosexual unions is a step towards marriage equality. “Let us preserve the autonomy so long as it does no impinge on others’ rights.,” he said. He further added that “non-heterosexual unions and heterosexual unions must be seen as two sides of the same coin.”
2.Justice Kaul used the term “civil union” for non-heterosexual relationships. Agreeing with the CJI, he stated they should not suffer any form of discrimination. He concluded his judgement by saying that a regulatory framework should be created to recognise civil unions between same-sex couples. All constitutional authorities should work towards this end.
3.Justice Raveendra Bhat, reading out his judgement, said the court cannot create a legal framework for queer couples, and the Legislature must do it. “All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union,” he said. Justice Bhat disagreed with CJIs judgement on right of queer couples to adopt.
4.Justice Narasimha said it would not be Constitutionally permissible to recognize a right to civil union mirroring a marriage. The right of LGBTQIA is gender identity, right to sexual orientation, right to cohabitation and they have full freedom in the same. Among the 5 judges’ bench, the sole woman judge on the Bench, J. Hima Kohli, has not given a separate opinion.
The verdict in a nutshell
1.The Supreme Court refused to recognise same-sex marriage. It directed the union to frame committee to determine rights of queer unions.
2.If section 4 of Special marriage Act is held unconstitutional, it will take India back to pre-independence era.
3.Adoptions regulations are violative of Article 15 for discriminating against queer community.
4.The Centre, State and UT government has been directed to
(i)Prevent discrimination against the queer community based on their gender identity/sexual orientation.
(ii)Establish hotline numbers for the queer to report harassment and violence in any form.
(iii)Promote education and awareness related to it, emphasising its naturalness and non-association with mental disorders.
(iii)Ensure that the community has equal access to goods and services.
5. Idea of marriage is not a fundamental right.
The voice of the people of India
Rajan Chhatriya, a man in a gay relationship based in Tamil Nadu, expressed to TTL, “I am disheartened by the Supreme Court’s judgement. What is even the point of living in a place where you cannot be accepted wholly for who you are.” Filmmaker Onir has expressed his disappointment at the verdict pronounced. He tweeted, “DISAAPOINTED …. The cis gendered world FAILED to be better humans.” Tanu Sharma, 19 year old student based in Delhi, said to TTL, “Our (new) generation is accepting the LGBTQ community but the people sitting as the law makers, the older generation refuse to accept them. As soon as it came to marriage rights for queer people, the court so conveniently said that marriage is not a fundament right.” Keshav Awasthi, 21 year old student based in Dehradun, said to TTL, “It is indeed a sad day for the so-called ‘largest democracy in the world.’ As a straight man, I wish for the sake of the LGBTQ community that the SC had allowed same sex marriages. This is a very weak decision made by the court.” Tanya Singh, a 23 year old lesbian woman based in Patna, expressed to TTL, “It’s sad how I did not even expect for a minute that we would get marriage rights. Indian society is still struggling with accepting inter-caste and inter-religion marriage. It is going to take a long time to get same-sex marriage recognised.” Expressing a different view from most Gen-z that TTL spoke to, Rahul Bhadoriya, a straight 20 year old man, said, “It is a hard slap to the face of all those who wanted to destroy the most valuable and important thing of the Indian culture: marriage. It is good to see that the SC did not get influence from the western culture and let marriage remain sacred.” Marriage denied to LGBTQ+: Now what?
Even though the Supreme Court in its verdict refused to recognise same-sex marriage, the fight has not ended. Rights for LGBTQ+ will go a long way. It took time for the SC to decriminalise homo-sexual relationships, but it happened. As the petitioner and activist Anjali Gopalan said: We will keep fighting. Sources: Bar and Bench, Live Mint
By, freelance journalist, reporting for true to life