The court’s acknowledgement of the economic and social privileges marriage provides is significant—even if the queer Indian community has a long way to go.
In 2018, the Indian Supreme Court ruled in favor of scrapping Section 377—a British colonial-era regulation that effectively banned homosexuality in India by punishing queer sex with imprisonment. In the five years since, queer people across the country have hoped for a larger acceptance of their identities through the rights and liberties to enter into civil unions and marriages. Those hopes were dashed Oct. 17 when the court ruled against ratifying same-sex civil unions and marriages in the constitution.
Over 10 days in April and May, the Court heard arguments from 21 petitioners seeking to amend the Special Marriage Act (SMA) to include marriage as a fundamental right for all couples, including those in same-sex relationships. The petitioners sought to amend the act to say “spouse” instead of “man” or “woman,” allowing for a gender-inclusive interpretation of marriage.
This week, the five-judge bench, led by Chief Justice of India (CJI) D.Y. Chandrachud delivered a ruling opposing marriage as a fundamental right of all citizens, acknowledging the contentiousness of queer identity in India. While this ruling was seen as a loss by the petitioners that sought to legitimize their relationships in the eyes of the state, the four separate opinions delivered by the bench explain the many arguments that have been delivered to the bench, and to queer citizens, over the last five years.
Plaintiffs argued that queer couples deserve the same legal rights and privileges afforded to married heterosexual couples. The petitioners argued that the legitimacy of same-sex couplings is within the fundamental rights to equality and privacy. The opposition to the petition included the Central government, the National Child Rights Body, and a collective of Islamic scholars, the Jamiat-Ulama-i-Hind.
The Central government’s case, pleaded by the ruling Bharatiya Janata Party (BJP), has consistently argued that marriage equality is a Western concept that does not have any basis in the Indian constitution. During its time as the ruling party, the BJP has repeatedly aimed to preserve the sanctity of what it believes to be Indian tradition by opposing any Western influence on its ideals. The party argued that same-sex unions were an “urban” and “elitist” concept, asserting that same-sex couples were not comparable with the traditional Indian family unit.
But queer Indian advocates pointed out that this line of argument erases the centuries of Indian queer history that has been represented in myths, urban legends, scriptures, and even temple carvings historically. According to Indian historians, in pre-colonial India, homosexuality was not seen as something foreign, but rather something that was natural and accepted.
In his verdict, CJI Chandrachud specifically addressed this argument, saying, “queerness is neither urban nor elite.” He admitted that the judiciary does not have the power to amend the SMA, leaving these changes up to the legislature. “This Court must be careful to not enter into the legislative domain,” he said.
However, he did issue a series of directives to the Union and state governments to combat discrimination against queer people by ensuring that they have equal access to goods and services, access to a crisis hotline and urged the development of safe houses in cities for queer people fleeing abuse from unaccepting families. He also clarified that trans people in heterosexual relationships have the right to marry under the current provisions dictated in the Special Marriage Act—which is a win in its own regard.
The queer community will continue to move forward in solidarity and with resilience, as we always have.
Ankita Khanna, petitioner
In the same ruling, the bench presented 3-2 verdict against civil unions for couples in non-heterosexual relationships. However, the court’s acknowledgement of the economic and social privileges marriage provides is significant—even if the queer Indian community has a long way to go.
One of the petitioners in the case, Ankita Khanna, expressed her deep disappointment with the verdict. Adding, however, that “the queer community will continue to move forward in solidarity and with resilience, as we always have.”
As the fate of same-sex marriage in India is passed onto parliament, queer citizens of India are left in the hands of a BJP-majority that must begin to realize the irony in obsessing over maintaining the essence of Indian culture while erasing the queerness that has existed in scriptures, stories and legends from time immemorial.
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