Today, October 17, the Supreme Court refused to recognise “same-sex marriages” under the law, claiming that it cannot interfere in matters of the legislature.
This judgement was passed by a five-member bench comprising Chief Justice of India (CJI) DY Chandrachud and Justices Hima Kohli, Shripahti Ravindra Bhat, Sanjay Kishan Kaul, and PS Narasimha, which heard arguments in the case between April and May this year.
The court unanimously agreed that the Special Marriages Act is currently incapable of providing relief to LQBTQ+ couples and that granting marriage equality would mean introducing completely new provisions for marriage – which is a legislative exercise, not a judicial one.
However, the court stated that the legislature must ensure that queer couples are not discriminated against socially, and directed the government to form an expert committee to grant a bundle of rights to queer couples (apart from the right to marriage) that heterosexual couples enjoy, such as visitation rights in hospitals, opening joint bank accounts, adoption rights, and more.
What is worth noting is that CJI Chandrachud also stated in his judgement that contrary to the Central government’s claim, queerness and queer marriage is not an “elite and urban” concept, and terming it as such amounts to “erasure” of the community.
In light of these statements, what would the verdict mean for the LGBTQ+ community in India? To gain a better understanding of this, we spoke to a law professor, who goes by Kaafi Historian (@TurbulentTamizh) on X, formerly known as Twitter. The professor has 4,554 followers on Twitter and is known for their tweets that cut through the noise and say it like it is. Here is the conversation, all carried out under the condition of anonymity:
What were your initial thoughts regarding the judgement shared by CJI and the rest of the judges?
Even at the offset, nobody really expected that the Supreme Court panel would have a full majority. I think even the petitioners knew that same-sex marriage would not be legalised. It would be too big a step for the court to completely overhaul the Special Marriage Act.
I assumed that the Supreme Court would remind the legislature of its constitutional obligation to extend marriage equality rights to LGBTQ+ persons. However, I was shocked to see that nothing of that sort happened.
What is even more disappointing is the Supreme Court’s failure to introduce interim measures to protect LGBTQ+ couples. The Supreme Court could have given guidelines to the police on how to approach cases of queer couples who elope if their parents do not accept their relationship or sexual orientation. The Supreme Court could have recommended a bundle of rights to queer couples, such as being able to hold joint bank accounts or even visitation rights if one of them gets hospitalised. I don’t think that granting these ancillary rights is as controversial as legalising same-sex marriage.
The panel seems to recognise that the rights of the LGBTQ+ community need to be respected – however, they also stated that this cannot be done under the Special Marriage Act. What do you make of it? Can the SC not direct the government to amend the Special Marriage Act to give protection to queer couples under Article 32?
There are two options that the Supreme Court considered – one, striking down the Special Marriage Act (SMA), and two, interpreting the Act on gender-neutral terms. The SMA was drafted on very gendered terms. The court stated that as it is too large and detailed, it cannot remedy it, and that the legislature must take it up.
There is a third route that the Supreme Court could have followed – like the Constitutional Court in South Africa, the Supreme Court can examine the Constitutional validity of the Special Marriage Act.
There is also the matter of SC asking the government to form a committee to decide what rights must be granted to queer couples...
The Supreme Court has a history of passing the buck on the final decision to Central government committees. This was evident in Anuradha Bhasin v Union of India, where the Supreme Court directed the government to review internet shutdown orders in Kashmir against the test of proportionality outlined in its judgement.
However, there have been instances when the Supreme Court directed how institutions function, as seen in Parmanand Katara v Union of India. Human rights activist Parmanand Katara filed a Public Interest Litigation (PIL) in the Supreme Court after a scooter rider met with an accident and hospitals refused to treat him as it is a “medico-legal case”. The court held that patients should not be denied treatment in such cases, and protection of human life is most important.
Even in the Bhanwari Devi case, the Supreme Court drafted and introduced the Vishakha guidelines as there were gaps in the legislature.
In this case, I cannot understand why the Supreme Court could not even give directions for privileges for queer couples for things as simple as visitation rights in hospitals.
What do you think is the reason for this hesitation?
Well, the Supreme Court has been perceived as a liberal institution, where judicial activism is possible. The petitioners approached the Supreme Court as it could not trust the government to form laws that benefit the LGBTQ+ community anymore, specifically after it passed the Transgender Persons (Protection of Rights) Act
In reality, the Supreme Court is a restrictive institution which upholds the law vehemently and does not utilise the powers vested in it.
Moreover, unlike in Section 377, the government has been strongly opposing same-sex marriage. I think that the Supreme Court feels that putting up a fight against it is futile, as it cannot win.
The SC also did not recognise civil unions and grant adoption rights to queer couples. On the other hand, they reminded the public that heterosexual trans persons can marry cis persons or other heterosexual trans persons legally. Are heterosexual marriages and unions the only valid form of family in India?
Heterosexual trans couples, or trans persons in heterosexual couples are not seen as a challenge to existing marriage laws. The law establishes them as "man" and "woman."
In fact, the Madras High Court recognised a trans woman, who got married to a cisgender man in a traditional Hindu ceremony, as a “bride” in Arun Kumar v. Inspector General of Registration.
However, this poses one complication – in a heterosexual marriage, what if one party comes out as transgender? What would happen to their marriage? Would it be like it used to be in Europe, where this would result in the marriage ending automatically?
Such cases are likely to be heard in the coming days. However, this acknowledgement will be beneficial to heterosexual trans persons.
In both adoption and the recent surrogacy laws, queer couples have been excluded. While I recognise the problems surrogacy has and its criticism from feminists – it does go on to show that the law still recognises a husband and wife as ideal parents.
In this context, the SC also stated that while queer people have the right to choose their partners, the state is not obliged to uphold the rights of their partnership. What does this mean for queer couples living together?
Justice Kaul, in his judgement, called for an anti-discrimination law for the LGBTQ+ community to be passed.
While the Right to Union exists for queer couples, the partnership cannot be legally recognised as it does not fit the existing parameters of existing marriage laws, and the Supreme Court stated that it cannot extend the parameters.
However, both the Uttarakhand High Court and the Odisha High Court observed that same-sex couples can live together and that it is the state government’s duty to protect them. Such couples in other states, on the occasion of discrimination, can approach their state’s high court and refer to these judgements.
How does this judgement sit in the context of previous landmark judgements about the LGBTQ+ community?
It is not like the NAZ Foundation judgement, as that tried to introduce a revolutionary change to Indian law. Nor is it like the Navtej Singh Johar judgement, which had a unanimous verdict.
However, it is closer to the Suresh Kumar Koushal v. NAZ Foundation judgement, which criminalised homosexuality in India in 2013. Today’s judgement, in my opinion, does equal damage.
Essentially, you have the Supreme Court saying that the existing legislature is so discriminatory that it needs to be rewritten completely, but we cannot do it and we would not direct the government to do it either. This is the Supreme Court acknowledging the discrimination faced by the LGBTQ+ community, but refusing to do anything about it.
What would this judgement mean for the LGBTQ+ community in India? Are there any wins for them?
There are absolutely no wins for the community. However, some of the statements, particularly those made by CJI Chandrachud and Justice Kaul, can be used in the litigation struggles and to resist the implications of the judgement itself.
Apart from that, this judgement maintains the status quo and changes nothing.
The community received a lot of queerphobia and negative visibility during the hearing, particularly from the Solicitor General of India, Tushar Mehta. However, there was also so much mobilisation from LGBTQ+ activists and lawyers alike, and people were hoping to receive some gains for the community. After homosexuality was decriminalised in 2018, there were hopes that India would jump to legalise same-sex marriage.
All the litigation, all the mobilisation, all the efforts, all the negative visibility – for nothing. Even under a new CJI, I don’t see how things can improve. The only hope is if a state government is convinced about this verdict’s dangers, and calls for a state-level amendment.
I also hope that the same mobilisation is kept up for the hearing of the Trans Bill, which is going to be even more of a challenge.
