Same-Sex Marriage Verdict: An In-Depth Analysis of the Supreme Court's Ruling

New Delhi - October 17 will be remembered in history as one of the many days that have disappointed the queer community in India. In that sense, the day is not very different from any other date. The realization that the fight is far from over is sinking in. But the judgment did bring up some important points, mainly in the form of directives, that should not go unnoticed. An online press conference was organized by the National Network of LBI Women and Trans Persons to discuss the Supreme Court's judgment on the marriage equality petitions following the disheartening verdict.

During the online Zoom meeting, which had more than a hundred participants, queer rights activists took center stage. Varsha from Nazariya remarked that even though the Supreme Court did not provide marriage rights, it did emphasize the fact that LGBTQIA+ people have the 'Right to Protection.' The model of 'Shakti Vahini,' which provides legal protection to consenting adults who want to marry and conducts campaigns against human trafficking and child marriage, can be used by queer couples as well. Consenting adults in same-sex relationships often face violence from their natal families (the family in which they were born). In some instances, the police even assist the family. One or both of the partners are coerced into staying at home or marrying someone else without their consent, or worse, they are sent to medical practitioners with false claims. They end up experiencing physical and emotional abuse. The apex court has now stated that Shakti Vahini should assist in such cases. They reiterated the court's statement that it is the state's responsibility to protect community members.

Koyel from Sappho for Equality expressed their dissatisfaction with the judgment while expressing the feeling that a fight for equal rights was never going to be easy. Queer couples have been given more recognition through the verdict. CJI Chandrachud's judgment providing directives can be instrumental in the fight. Speaking about the future course, they mentioned that these guidelines can be used as references during any legal proceedings. The organization will be filing writ petitions in different High Courts for the implementation of the directives.

Fred Rogers, another panelist at the table, acknowledged the apex court's statements regarding queer parents not being "unstable" for children. This statement could benefit LGBTQIA+ people who are already parents to biological children. Furthermore, the five-member bench extended rights to transgender people who identify with a binary gender. This can still be seen as a positive step.

Suraj Sanap, an advocate on the panel, reiterated that the reinterpretation of the Special Marriage Act can only be done by the parliament, and the judiciary has no power in this regard. The judgment also directed the governments at various levels to establish committees to determine the rights to be granted to LGBTQIA+ community members. Marriage is listed under the 'concurrent list,' so both the state and central governments can decide to enact legislation for same-sex marriages. A central legislation would hold more significance since it would be applicable nationwide. Justice Bhat, Kohli, or Narasimha did not contradict the observations related to discrimination. Justice Bhat also observed that same-sex couples did not have access to the same rights as heterosexual couples, so the states can take remedial steps.

Chayanika Shah from Hasrat-e-Zindegi-Mamuli summed up the press conference by stating that live-in relationships for queer people are deemed acceptable by the court. They went on to highlight the irony in society by asking, "Cisgender heterosexual couples are always said not to be in live-in relationships, but the court has asked queer couples to only be in live-in relationships?" She further added, "In India, structural rights are not questioned. So, are we supposed to have a different kind of marriage?"

The Mooknayak reached out to advocate Diksha Dadu, who practices at the Supreme Court and various courts and tribunals in Delhi, to discuss the legality of the directives issued through the judgment. She said, "The court has laid down some guidelines, but these are not mandatory. They are only guidelines for the state and the central government. It now depends on the executive to first constitute a committee, after which they will decide what needs to be done and what cannot be done with respect to the guidelines. Later, they will make amendments to the law, as the court specifically stated that they cannot read into the law."

The advocate then talked about the operational similarity between the NALSA judgment and the directives. She said, "NALSA gave all the states a lot of directions, such as setting up a cell and providing reservations to the transgender community, but that did not happen. Only 1% reservation was given by the state of Karnataka because the state followed it while others did not."

Recently, the Madras High Court and Kerala High Court sought to ban bogus medical practices such as conversion therapy for LGBTQIA+ individuals. One of the directives laid down by the Chief Justice of India through the verdict was against such practices. No judge contradicted his statements. So, a legal approach against such medical procedures will have a stronger case now.

Talking about the prospects of the community, advocate Diksha said, "Right now, this judgment will hold value. Just like with NALSA, when people tried appealing against it, the courts rejected all the pleas. When one of our petitioners also tried appealing for reservation under the category of 'Backward Classes,' the court denied it because NALSA said the transgender community cannot come under the provision of backward classes. So, it depends on the discretion of the court." She further added that the groups can always appeal for a review of the judgment, but for that, the Supreme Court must convene a seven-judge bench or one of a higher number, as the verdict was delivered by a five-judge bench. "Any of the petitioners or anyone who feels aggrieved by the judgment can file a petition for review. But it needs to be done as early as possible," she added. The directives can also provide a basis for advocacy at local levels.

The LGBTQIA+ community always knew that the fight for equal rights would not be an easy one. Instead of being dragged down by the discouraging judgment, queer members are appreciating the small wins and focusing on the path they need to take in the future.

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