As five judges of the Constitution Bench hearing marriage equality petitions assembled at 10:55 am on Tuesday in court one of the Supreme Court, the group waiting anxiously in the visitors’ gallery looked up in anticipation and hope.
Their five-month-long wait was about to end, they assured each other. And when Chief Justice of India DY Chandrachud commenced with what everyone believed was the majority opinion verdict, the group was all ears.
There was disbelief when the CJI declared the court was incompetent to give a gender-neutral interpretation to the Special Marriage Act (SMA)—a secular law to facilitate inter-faith wedlocks—to include within its compass same-sex couples, leaving lawmaking to Parliament.
But the group was comforted when CJI and Justice Sanjay Kishan Kaul declared that the LGBTQ+ community possessed rights to enter into a civil union, granting them entitlements associated with a legal union and to adopt a child.
However, their joy was momentary. An hour later Justice SR Bhat declared he and the remaining two judges on the bench—Justices Hima Kohli and PS Narasimha—disagreed with their two senior brother judges on the issue of civil union, civil rights and adoption for same-sex couples.
With a unanimous verdict, the five-judge Constitution Bench on 17 October refused to recognise the LGBTQ+ community’s right to marry. Dismissing 21 petitions that made this demand, it declared there was no fundamental right for two persons to marry each other.
A 3:2 decision denied access to homosexual couples the same privileges that flow from a legally recognised marital union. But the apex court acknowledged their right to a relationship, to choose and cohabit with a partner of their own choice.
The complexity of the issues involved in the matter was such that four opinions were penned, with CJI Chandrachud and Justice Bhat also authoring their counterpoints to each other’s version. As the 366-page ruling was being read out, peppered with references to gender, adoption, and even a Bon Jovi song, emotions soared high outside the court. The reactions of the LGBTQ+ community ranged from calling the verdict ‘an assertion of queerness’ to ‘lip service’. Their wait had been long and punishing. But it didn’t end well. It is for this reason that same-sex marriage is ThePrint’s Newsmaker of the Week.
What began as a hopeful journey for the community with the decriminalisation of homosexuality in 2018, when a five-judge bench unanimously spoke against the colonial-era penal law, Section 377 of the Indian Penal Code (IPC), ran aground at the marriage question this week.
From 2009 to now
Chief Justice Dipak Misra, who headed the bench in 2018, had spoken emphatically. “I am what I am. So, take me as I am. No one can escape their individuality.” Constitutional morality was given a higher pedestal in the verdict. It refused to “martyr” morality at the “altar of social morality”.
In doing so, the SC disavowed its 2013 decision that refused to address the concerns raised by what it described as the “miniscule segment” of society. The 2013 SC verdict had reversed a 2009 Delhi High Court judgment which decriminalised consensual gay sex.
The 2018 SC judgment stemmed from petitions filed by individual members of the LGBTQ+ community, which, for the first time, took the legal route for recognition of their rights—primarily the right to privacy.
It was the Right to Privacy verdict, also known as Justice K. S. Puttaswamy (Retd.) & Anr. vs. Union Of India & Ors. (2017), that emboldened them to do so, despite the 2013 ruling. Indians had the right to privacy, which included rights to consensual personal intimacies, family life, procreation and sexual orientation, the Puttaswamy verdict had declared.
Though the 2018 SC judgment did not touch upon civil rights for the LGBTQ+ community, it did raise their aspiration to realise their constitutional rights. For the community, decriminalisation was the first step. They hoped the top court would stick to its statement that “in a progressive and an ever-improving society, there is no place for retreat”.
While the 2018 verdict protected queer couples from police prosecution, it did little to convince their families to recognise their relationships. Once again, it was the courts that responded progressively, protecting them from familial oppression and harassment.
A public interest litigation in the Delhi High Court in 2020 furthered the queer community’s expectations for equal rights. Defence analyst Abhijit Iyer Mitra raised the demand for marriage equality through his petition. A notice issued to the Centre regarding this led to a flurry of similar petitions, not just in Delhi but other high courts, many of which were filed by queer couples.
Also Read: Marriage as institution precedes state — SC’s majority view on same-sex marriage
Chandrachud’s role
It was in November 2022, soon after Justice Chandrachud took over as the CJI, that the matter reached SC. He was one of the members of the bench that authored the 2018 historic verdict.
To pre-empt divergent opinions from multiple high courts, CJI Chandrachud in January this year ordered the transfer of all the cases pending before high courts to the Supreme Court He also made a reference to a larger bench as the petitions involved an interplay of constitutional rights and specific legislative enactments, including the SMA and Foreign Marriage Act (FMA).
However, the arguments were limited only to SMA, as the court turned down the petitioners’ demand to be recognised as married couples under personal laws. .
It was the petitioners’ case that they should not be deprived of what heterosexual people take for granted and that these rights should be equally available to all, including homosexual couples.
This meant, they should be allowed to live as a family, which, for long, has been the “traditional unit” of society and be beneficiaries of all the entitlements that arise out of this bond such as the right to become a partner’s nominee in a bank account and insurance policy. Why should they be excluded from succession and inheritance rights due to their sexual orientation is what they asked the court.
Hope was pinned on previous judgments, which have expanded the amplitude of Article 21 (right to live) of the Constitution.
On its part, the Modi government refuted the insinuation that it is opposed to queer relationships. At the outset, it took a stand that queerness is an elite and urban concept. Later, however, as the hearing proceeded the Centre contested the petitions on merits, questioning the court’s jurisdiction to decide the issues. It warned the court against walking into a web of personal laws, intertwined with SMA.
Also Read: ‘Equal rights to equal love’ — where CJI & Justice Kaul disagreed with majority on same-sex marriage
Long overdue validation
Given the progressive stand it has taken, the Supreme Court’s refusal to accord recognition to same-sex marriages is seen as a huge legal setback to the LGBTQ+ community. There was disappointment, especially because of the long wait and the progressive remarks made by the CJI during the hearing.
The top court’s judgment in deference to the government has drawn criticism, with many believing it could have affirmed constitutional principles, and then left it to the legislature to do its job. The decisive pronouncement has granted more to the state, which the queer community has said would be used to deny same-sex couples the right to preserve their personal intimacies.
While marriage equality may remain a pipe dream for the queer community, there still lies a ray of hope for them in the form of a civil union. Even though the majority opinion did not extend the right of civil union through a judicial pronouncement, it joined the minority view to speak of the obligation of the state to look at it, to examine the ways in which same-sex relationships must be recognised and respected.
The proposed government committee can take a cue from these observations and suggest administrative measures to improve the day-to-day lives of same-sex couples. It could mark a profound shift in public attitudes and accelerate the rate of acceptance of same-sex marriage.
For now, the SC refused to intervene in the matter and made the legislature and executive responsible for ending the ignominy and ostracism queer couples suffer; extending the long overdue validation of a basic human right.
Views are personal.
(Edited by Theres Sudeep)