In a significant ruling on Tuesday, October 17, a five-judge Supreme Court (SC) bench led by Chief Justice of India (CJI) DY Chandrachud refused to grant legal recognition to marriage equality for LGBTQIA+ individuals and left the framing of any legislation to the Parliament’s discretion. However, the court emphasised the need for LGBTQIA+ persons to be ensured of their right to safety and protection, and directed the state and the police to safeguard LGBTQIA+ couples. But by refusing to grant legal recognition for their marriage, the verdict has drawn both criticism and has instilled hope among the queer community and its allies.
Speaking to ANI, activist Anjali Gopalan, who was also one of the petitioners, asserted her commitment to the cause and stated, "Our fight has been long, and we will persist in our efforts. While it's disappointing that no progress was made on the issue of adoption, Chief Justice's remarks were encouraging, and we remain hopeful for the future. In a democratic country, it's disheartening that we're withholding rights from our own citizens."
Another petitioner, Harish Iyer, told ANI that though the final verdict was not in favour of same sex marriages, the SC has made several favourable observations. “Now as the SC has laid the responsibility with the Union Government, it is important for us to engage with the elected representatives and convey that we are as different as two individuals,” he said.
Aravind Narrain, a lawyer and writer based in Bengaluru, who also worked closely with Akkai Padmashali and Uma, both petitioners from Karnataka, told TNM that the community will now have to re-orient their fight. “The battle now needs to be fought with the legislative bodies and political forces as well apart from that of the courts. This judgement has nudged us towards the direction of making sure that the parliament has representatives from the LGBTQIA+ community so that their voices are heard,” he said.
Aravind further said that the community should not lose hope and added, “First the government refused to even hear the community’s problems, then when there was some pressure from the judiciary they responded and called it an ‘urban issue.’ But eventually, now, a committee is to be formed to understand the problems of the community and to award rights. This shows that when pressure is exerted by the court, the government is forced to consider and given that the courts have reinstated the rights of the community, it should instil in us hope. We can augment on this and use the recognition that the court has given us to push the government to bring about a change.”
Meanwhile, lawyer and a non-binary queer rights activist Rohin Bhatt expressed disappointment. They told TNM, “This judgement gives us a square root of nothing. They have held that there is no fundamental right to marry thereby rejecting our main plea. They have passed a few directions, but there were also directions passed in Navtej case, and nothing came out of it. So I am not hopeful about anything coming out of it but we have to fight it again.”
Speaking to TNM, L Ramakrishnan from Saathii, an NGO based in Chennai which advocates for LGBTQIA+ rights, also expressed disappointment over the verdict and said that SC has not recognised anything beyond the 2018 Navtej verdict which allowed consenting adults of any gender to have the right to live together. By highlighting that a trans couple had a self respect marriage in Tamil Nadu, Ramakrishnan asserted, “If Tamil Nadu offers that to all queer individuals, it will be huge and the state will be a model for the country.”
At a press meet in Bengaluru, trans rights activist Akkai Padmashali, who was also one of the petitioners, urged the implementation of the SC's directives suggesting the formation of a special committee comprising experts and community members. She expressed hope and trust in constitutional morality, calling upon members of Parliament, Prime Minister Narendra Modi, and leaders of every political party to champion the cause of LGBTQIA+ rights in all spaces. “We still have hopes, we still have some amount of trust in Constitutional morality,” she said.
Read: ‘It’s a step ahead’: Trans rights activist Akkai Padmashali on marriage equality verdict
Gargi H from Vanaja Collective, an organisation for oppressed communities in Kerala, also expressed disappointment over the verdict and pointed out that the SC upholding the right of trans women and trans men to marry according to any personal law is the only positive element of the judgement.
Noted historian and writer Manu S Pillai expressed his disappointment with the judgement. Taking to social media, Manu said, “Disappointing verdict from the SC. Lots of ‘kind words’ as if bestowing a weak, condescending consolation prize. Could have done without the sermon. Would have been a little more honest. Congratulations only to Saurabh Kirpal [one of the lawyers representing two petitioners] and others who have been (and will keep) fighting for more than just platitudes.”
Anish Gawande, founder of Pink List India said, “Committees without a clear timeframe, a clear composition, and a clear locus of authority are pointless.The SC has merely rehashed what the Solicitor General promised during hearings. Ball is now in the government's court.”
Further, Supreme Court advocate Karuna Nundy told ANI, “There were some opportunities today that I believe have been pushed off to the legislators and the Union government has made their stand clear with regards to marriage. We hope that their committee will ensure that civil unions are now recognised and concomitants of marriage are then brought into law at least with regards to civil unions.” She also urged Congress-led and other non-BJP state governments to enact protective laws such as ensuring the right to make medical decisions for a partner.
Meanwhile, anti-LGBTQIA+ sentiments were expressed by the president of the Bar Council of India who told ANI, “For those who say we will go to court, today they understand that Hindistan’s court is not here to change our system.” He went on to thank the apex court for its “decision in upholding the government's position”. He also said that the power to grant rights resides with the Parliament and not the courts. “India is an ancient country and has societal values. This will put a full stop to foreign influences attempting to alter Indian societal values,” he also said.