“We Have Been Fighting For Long, And Will Keep Doing So”

The Supreme Court on Tuesday in a unanimous verdict, rejected petitions seeking same-sex marriage in India. The apex court also refused to tweak provisions of the Special Marriage Act leaving the LGBTQI+ community heartbroken and disappointed, as many were expecting a positive result.

The matter was decided by a five-judge Constitution Bench, headed by Chief Justice of India D. Y. Chandrachud. All five judges agreed that there was no fundamental right for non-heterosexual couples to marry, with the majority view being that the legislature must decide on the issue of same-sex marriage.

While CJI Chandrachud and Justice Sanjay Krishan Kaul said the right of same-sex couples to enter civil unions flows from Part 3 of the Constitution; however, Justices S. Ravindra Bhat, Hima Kohli and P. S. Narasimha differed.

Delivering his judgment, CJI Chandrachud said that the Supreme Court could not strike down provisions of the Special Marriage Act or read things differently. He added that in his opinion, the Parliament should decide on the issue.

He issued directions and guidelines to the Centre and police forces, in order to prevent discrimination against the queer community. Following the CJI’s judgment, Justice Sanjay Kishan Kaul also batted for civil unions for non-heterosexual couples.

In his judgement CJI Chandrachud said that doctrine of separation of powers cannot stand in the way of this court to issue a writ to protect fundamental rights.

However, Justice Bhat differed, stating, "Civil unions can only be recognised through laws". He added that the court can't press the state to create a legal framework for it.

"Recognition for civil union cannot exist in the absence of a legislation. Creation of an institution depends on the State action which is sought to be compelled through the agency of the Court," Justice Bhat observed.

Meanwhile, CJI Chandrachud also added that being queer was not an urban concept but also extended to villages as well. “Courts cannot make law but can interpret and give effect to it. Then, on the subject of queerness, queerness is not urban or elite. In the limited exploration of the literature on the subject..

“It makes it clear homosexuality is not a novel subject. People may be queer regardless whether they are from villages or cities.. not only an English speaking man can lay claim to being queer.. It is also a woman working at a farm in a rural area,” CJI Chandrachud said.

Bharatiya Janata party (BJP) government had opposed the case, calling the arguments for equality “urban elitist views” and stating that marriages were not “comparable with the Indian family unit concept of a husband, a wife and children”. It had argued that the matter should be decided in parliament, not the courts.

However, for many queer people, these were “hollow words”.

“These are merely words, nothing else. This is so disappointing, I don’t even have words to explain how I am feeling,” Prayag, a software engineer based in Delhi told The Citizen.

The five-judge bench differed on adoption by same-sex couples; it ruled 3:2 against it in four separate judgements. The Chief Justice said that it is "incorrect to state that marriage is a static and unchanging institution", adding that "reforms in marriage have been brought about by Acts of the legislature".

Choosing a life partner is an integral part of choosing one's course of life, the Chief Justice said. "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," he said.

“It is for the Parliament to decide whether a change in the regime of the Special Marriage Act is needed. This Court must be careful not to enter into the legislative domain,” Justice Chandrachud added.

Justice Kaul, who said that the Special Marriage Act is violative of Article 14, also noted that "there are interpretative limitations in including homosexual unions in it." He added, "As rightly pointed by Solicitor General, tinkering with Special Marriage Act can have a cascading effect".

Many called the 300-page judgement long and endless words. “Wake me up, when obiter dictum ends,” Areeb Uddin, a lawyer wrote on X.

Just as the judges were reading their statement, people took to social media to announce their disappointment.

Queer rights activist and lawyer Rohin Bhat took to X and said they are deemed as “second class citizens” by the court today.

“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,” he said.

For Payal Saxena (name changed on request), a filmmaker, the decision was unexpected but not shocking. “Considering the abysmal run on legal rights and societal standing of our country when it comes to the LGBTQ community, I wasn't expecting much to be honest, but the problem with this case is that it has gotten the community into spotlight and made them more vulnerable when blind hatred and mob mentality is so rampant in India,” she said, referring to numerous cases of harassment and murder of trans community.

Calling the judgment a major setback, Saxena said that the move is a disappointment for many trans and gay children. “There must be tons of gay and trans kids who must be losing hope today because of this judgement and wondering how to spend the rest of their lives having to hide such a vital part of themselves. I know I did when Section 377 was still in effect.

“The worst part of this is how it will affect the rural and town side queer population of the country, the ones with limited resources and/or the ones who want to stay within their country and enjoy equal rights as heterosexual couples,” Saxena added.

The religious bodies in India, were however satisfied with the decision and have been against the equality of marriage. One of the petitioners and activist Anjali Gopalan, however, said that they will keep on fighting as if the battle is going to be long.

“We have been fighting for long and will keep doing so. Regarding adoption also nothing was done, what the CJI said was very good regarding adoption but it's disappointing that other justices didn't agree… this is democracy but we are denying basic rights to our own citizens,” she said.

For Prayag as well, the fight is going to last a little longer.

Last November, the first of the petitions was introduced when two same-sex couples filed writ petitions arguing that Section 4(c) of the Special Marriage Act — which only acknowledges marriage between a “male” and a “female,” thereby excluding same-sex couples from the existing legal framework to wed — is unconstitutional.