New Delhi - On the morning of October 17th, queer people from the entire nation sat with their eyes and ears glued to the news. The final verdict on same-sex marriage was about to be delivered. The community, which has always been excluded from spaces, hoped that maybe for once their pleas would be heard. But the judgment turned out to be disappointing for them. Chief Justice of India D.Y. Chandrachud, along with Justice Sanjay Kishan Kaul, agreed to recognize civil unions of non-heterosexual couples, while Justices Ravindra Bhat, Hima Kohli, and PS Narasimha delivered a verdict against it. A 3:2 judgment ended up shattering the hopes of the queer community.
The judgment began on a positive note, with CJI Chandrachud taking center stage. He stated that there has been a limited exploration of queer literature and subjects and observed that queerness is not exclusive to upper-caste city spaces. “It is not just an English-speaking man from an affluent family who can identify as queer,” CJI said. Even urban spaces are divided by caste, geography, and class.
Talking about marriages and love, both the CJI and Justice Kaul observed that marriage, like all other social institutions, evolves over time. There was a time when Sati was outlawed, and inter-caste, inter-religious marriages were accepted. Marriages cannot be static, stagnant, and unchangeable.
Justice Kaul remarked, “Humans are unique in various aspects. We live in complex societies. The ability to feel love makes us human. Our identity and needs are fully acknowledged.”
He added, “As humans, we seek companionship. Natal families and the families created with our partner form a fundamental part of our social interactions.” Both observed the need to allow queer couples to adopt and have their unions legally recognized.
CJI further issued a few directives to the government, which are as follows:
Provision of separate anti-discriminatory laws for queer people.
Sensitization of the public around gender and sexuality.
Creation of helplines for the people of the community.
Creation of 'Garima Grihas (safe houses)' for queer people in every district of every state.
Ensuring that inter-sex children do not undergo operations without their consent.
A ban on hormonal therapy and other such bogus medical treatments to reverse sexuality.
Justices Kohli, Bhat, and Narasimha provided a different judgment. Recognizing queer couples as legal, they went on to add that there was no opportunity to acknowledge their union as the step can only be taken by the parliament.
Justice Bhat said, “Ordering a social institution or creating a new institution will require a different court with a new universe of laws on minimum wage, inheritance, alimony, and so on.”
He further added, “Terms such as wife and husband were deliberately not kept gender-neutral. It was done to protect the marginalized female population.” They further added that the ‘benefits of marriage to a fulfilling life do not make marriage a fundamental right.’ They disagreed with adoption rights for queer couples too but did not elaborate on the reasons for doing the same.
The Supreme Court did unanimously hold that transgender persons in heterosexual marriages have the right to marry under the existing laws.
Speaking to ANI, Lawyer Karuna Nandy said, "There were some opportunities today that I believe have been pushed off to the legislators, and the central government has made its stand clear regarding marriage. We hope that their committee will ensure that civil unions are recognized, and the concomitants of marriage are then brought into law, at least with regards to civil unions. I will also say that Congress and other governments in power in the states have many opportunities to bring into law the recognition of a partner's rights to make medical decisions because they could legislate on health. They could look at employment non-discrimination. There is a lot that can be done if we heard anything that was unanimous; it was that queer citizens have rights. The rights of queer citizens must be protected, and state governments can protect them.”
Senior advocate Geeta Luthra, who appeared for some of the petitioners in the marriage equality case, says, "Even if the right to marriage has not been given, CJI has said that the same bundle of rights that every married couple has should be available to same-sex couples."
One of the petitioners and LGBTQIA+ rights activist Harish Iyer said, “Though in the end, the verdict was not in our favour, many observations made were in our favor. They have also put the responsibility on the Central government, and the Central government's Solicitor General said so many things against us, so it is important for us to go to our elected government, MPs, and MLAs and tell them we are as different as two people. The war is underway... It might take some time, but we will get societal equality.”
Expressing their displeasure, another petitioner and activist Anjali Gopalan remarked, "We have been fighting for a long time 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.”
Until now, no major political party has responded to the judgment yet, apart from the Indian National Congress. Congress General Secretary and Rajya Sabha member Jairam Ramesh posted on X (formerly Twitter) where he said, "On same-sex marriage and related issues, we are studying the different and differing judgments delivered in the Supreme Court today and will have a detailed response subsequently. The Indian National Congress has always stood with all our citizens to protect their freedoms, choices, liberties, and rights. We, as a party of inclusion, firmly believe in non-discriminatory processes — judicial, social, and political.”
The judgment has been a major setback to the community members in their fight for equal recognition and the fight against discrimination. Only time will tell what the future prospects of the petitioners will be and if any government will take the debate seriously.