Marriage equality verdict: Yet another ‘burial by committee’?

On 17 October 2023, the Supreme Court of India gave its verdict on the marriage equality petition that sought the inclusion of gay, lesbian and transgender unions under the Special Marriage Act. The five-judge constitution bench—consisting of Chief Justice D.Y. Chandrachud and justices Sanjay Kishan Kaul, S. Ravindra Bhat, Hima Kohli and P.S. Narasimha—had heard petitions related to the case for 10 days earlier this year.

On the question of the legality of same-sex marriage, the bench was unanimous that the right to marry was not a fundamental right; on whether same-sex couples can legally adopt children, it was a 3:2 split verdict, with the majority again voting against.

The verdict has obviously dashed the hopes of the queer community, who took to social media and other platforms to express their disappointment. Many had anticipated a favourable decision, in light of earlier landmark judgements on questions of human rights—like the right to privacy, the NALSA judgement and the repeal of Section 377 (which criminalised homosexuality).

The 17 October verdict did no more than recognise heterosexual unions involving transgender individuals and provide some guidelines to the police to prevent the harassment of queer couples. While this was a step in the right direction, many in the community feel it wasn’t an impactful one. The Madras High Court had already ruled in April 2019 that a marriage between a man and a trans woman was valid.

During the proceedings, senior advocate Menaka Guruswamy argued that marriage is a ‘bouquet of rights’, which includes the right to adopt a child together, share bank accounts, nominate your spouse for pensions and provident funds, and make medical decisions for each other.

When a person cannot legally add their partner as a nominee or a guardian, these rights are automatically granted to the next of kin, which in a queer person’s case could even be an estranged family member. Such a family member may not act in the queer couple’s best interest in the case of death or a medical emergency.

The lack of marriage equality infringes on personal liberty, guaranteed by Article 21 of the Constitution, too.

Chief Justice Chandrachud, while delivering his verdict, said: “Choosing a life partner is an integral part of choosing one’s course of life. Some may regard this as the most important decision of their life. This right goes to the root of the right to life and liberty under Article 21.”

While the court saw the right to choose one’s partner as a right guaranteed under Article 21, they didn’t take any steps to grant this right to queer individuals. The court, instead, directed the Union of India to form a committee to decide on the rights and entitlements of queer couples. The court did not specify a timeline or the scope of the committee, so it is unclear which rights it will oversee and when they will share their findings.

During the proceedings, the BJP-led Union government opposed the legal recognition of same-sex marriages in India. To put the onus on the Centre after knowing its stance and without a clear objective and timeline feels both futile and insincere.

Historically, the queer community has not found support in any of the three pillars of democracy in India.

In March 2016, when MP Shashi Tharoor tried to introduce a bill to change Section 377 of the Indian Penal Code, 58 Lok Sabha members voted against it, while only 14 supported it (with one abstention). According to an archive released by Pink List India in 2020, less than a third of the 543 Lok Sabha MPs ever addressed queer issues in their political careers.

The executive branch of democracy has also failed to implement laws and judgements pertaining to the queer community. Even though transgender people can legally self-identify their gender according to the NALSA judgement, they still encounter administrative hurdles while changing their sex on official documents.

A study by the National Institute of Epidemiology in April 2016 found that the police and law enforcement are the biggest perpetrators of violence against the transgender community. The gay and lesbian community still faces police harassment in India, despite the repeal of Section 377 in 2018.

The Supreme Court’s failure to uphold the rights of its queer citizens thwarts the freedom, legitimacy and dignity of legalised unions. This verdict abruptly halts the positive momentum of the queer rights movement in India that was set in motion by the Supreme Court’s repeal of Section 377.

The queer community braces itself for a long fight for its human rights, in the face of an unempathetic law enforcement, an inconsiderate Parliament and an indifferent judiciary.

(K. VAISHALI is an author, activist and DEI leader based in Hyderabad. Her memoir Homeless: Growing Up Lesbian and Dyslexic in India was published by Yoda Press and Simon & Schuster in March 2023)