The Supreme Court of India, in a five-judge bench, ruled out granting legal recognition of marital rights to gay couples. It stated that giving the right to marriage to same-sex partners is a matter that falls in the domain of the Indian parliament and the ball was passed in the court of the Indian legislature on this issue. In what is being seen as a setback to the advancement of LGBQT+ rights, especially for gay activists and many gay couples who had been fighting on this for years, indeed this verdict was disheartening. 

What does this mean for the LGBQT+ community and their rights in India and what does the future hold for them? Also, the question that needs to be raised is where India stands in terms of human rights on this significant issue. All these questions need to be debated and decoded.

'Second-class citizens'

In a historic verdict failing to overturn years of discrimination against the LGBQT community, the highest court of India rejected pleas to legalize same-sex marriage after hearing contesting arguments of both sides for months. Chief Justice of India (CJI), DY Chandrachud said the court cannot make laws in India and only interpret them. It was for parliament to take the call on same-sex marriage and do the needful. There were disagreements amongst the judges on this matter. Justice S Ravindra Bhat observed (with a Constitutional bench comprising of Justice Sanjay Kishan Kaul, P.S. Narasimha and Hima Kohli along with CJI) that the “Right to cohabiting cannot lead to setting up of an institution…ordering a social institution or rearranging existing social structures would require the construction of new code and also require marriage laws concerning alimony etc.…queer people have the right to privacy, dignity and to choose a partner. We disagree with the CJI in this regard which forms the basis of the final conclusions.” (‘Two Steps Forward, Three Steps Back: Supreme Court Verdict on Marriage Equality’, Tavleen Kaur and Deepanshu Mohan, The Wire, 18 October 2023. Source: https://thewire.in/law/two-steps-forward-three-steps-back-supreme-court-verdict-marriage-equality)

Though the court has recognized the rights of gay couples to cohabit giving them the right to marry, it said goes against the doctrine of separation of powers and meddling with the Special Marriage Act would be tantamount to disturbing the core values of interfaith and interreligious beliefs on marriage in India. After 2018 when the Court decriminalised homosexualty, the mood was upbeat as many anticipated the commencement of a defining chapter in the marriage equality case. All hopes were extinguished with this judgment. With this verdict, homosexual couples who were expecting a legalization of child adoption rights and a legal sanction of civil union as they are extremely abused and mistreated by society in general felt dishearted. Many have resolved to continue their fight and resistance against entrenched social and cultural norms that discriminate. A 28-year-old student activist in New Delhi was quoted by Al Jazeera saying, “I am angry and disappointed. There is a right-wing government in place and the ministers have been openly speaking against queers and the LGBT community. It is again going to be a long struggle.” (‘India’s top court rejects appeal to legalize same-sex marriage’, Al Jazeera, 17 October 2023, Source: https://www.aljazeera.com/news/2023/10/17/indias-top-court-rules-against-allowing-same-sex-marriage#:~:text=India's%20Supreme%20Court%20has%20declined,should%20be%20decided%20by%20parliament.)

Rohin Bhatt, one of the lawyers in the case, said, “Today the court has reaffirmed that queer citizens will be relegated to an unsympathetic legislature and an apathetic executive. We are second-class citizens, no matter how many judicial platitudes say otherwise. We will rise in rage and protest.” (‘Indian Supreme Court declines to legally recognize same-sex marriage’, The Guardian, 17 October 2023 Source: https://www.theguardian.com/world/2023/oct/17/india-same-sex-gay-marriage-supreme-court-decision-verdict)

Setback for marriage equality

The verdict definitely comes as a blow to queer rights and their long struggle to get a foothold and recognition in society. Especially, after the Supreme Court expanded the legal protection of same-sex couples in 2018 crushing a colonial-era law. However, Indian society is still blindfolded to the acceptance of cohabitation of same-sex couples who are neither accepted by families nor society at large. Many have been ostracized and shunned by society. Besides, in India, gender and sexual orientation are very well-defined and straight-jacketed. Any aberration from traditional norms and values is jettisoned immediately. Ideas of the consummation of marriage are manifested in considering man and woman or heterosexual couples as spouses. Though the court has acknowledged unlike the Central government that being queer is not elitist, neither urban, even a village woman doing agricultural work can be queer. But in many parts of India, whether rural or urban it is an uphill task to survive for many same-sex couples who face bizarre reactions from other sections of society. Even in the 21st century, marriage is an institution that sanctions sexual life often imposed through it. And love which is supposed to be the foundation of marriage is not necessarily yoked to it. Marriage is entrenched in power and class equations and patriarchy.

The verdict is not only a setback for marriage equality in India, but it is also equivalent to jettisoning the human rights of a section of citizens who have the right to privacy and the fundamental right to life and liberty as enshrined in Article 21 of the Indian Constitution. But often, what happens rights are interpreted in legalistic terms curtailing the freedom of individuals. It is always a tightrope walk balancing the individual rights wedded to libertarian philosophy and thought and social welfare that involves rules and regulations of society. The verdict certainly is an impediment to the quest for self-respect, individuality and self-esteem of its citizens. It outrightly nullifies and disregards the human rights of people in the process. India could have set an example with positive affirmation of this right as only Nepal and Taiwan have recognized same-sex unions in Asia. But that was not to happen, call it destiny or premeditated action.   

(The writer, whose research interests include human rights and gender inequity, particularly in South Asia, is  Assistant Professor, Department of Political Science, Jangipur College, Kalyani University, West Bengal. Views are personal. She can be reached at koyelbasu1979@gmail.com.)