Members of the LGBTQIA community on Tuesday expressed their disappointment in the Supreme Court judgement that refused to legalise same-sex marriages and left it to Parliament to formulate a law on the matter.
A five-judge Constitution bench headed by Chief Justice of India DY Chandrachud delivered its verdict on Tuesday in response to a batch of pleas seeking legal recognition for same-sex marriages. The bench, which also included Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha, delivered four separate judgements.
The court said that it cannot create a legal framework for queer couples because that is the job of Parliament. The bench also said that there is no fundamental right to marriage. Solicitor General Tushar Mehta said that the Centre will form a committee to decide the rights and entitlements of persons in queer unions.
After the judgement was delivered, advocate Rohin Bhatt, one of the lawyers representing the petitioners in the case, said that the verdict has relegated the community to an “unsympathetic” legislature.
“Today the court has reaffirmed that queer citizens will be relegated to an unsympathetic legislature and an apathetic executive,” Bhatt said in a tweet. “We are second class citizens, no matter how many judicial platitudes say otherwise. We will rise in rage and protest.”
One of the petitioners in the case Anjali Gopalan told ANI that the verdict also did not say anything about adoption for queer couples.
“Regarding adoption also nothing was done, what the CJI [Chief Justice of India] said was very good regarding adoption but it’s disappointing that other justices didn’t agree,” Gopalan said. “This is democracy, but we are denying basic rights to our own citizens.”
Another petitioner in the case, Ankita Khanna, also said that she was “deeply disappointed” by the verdict.
“The hearings and the months thereafter had given us a lot of hope that we were in the highest court of the country, and that our struggles were being heard and deliberated upon deeply,” she told The Guardian. “But what we got today was a deeply divided judgement that was unclear about what the law could offer as relief to the challenges of our unequal and diverse queer lives.”
Chandrachud, in his verdict, added that queer persons should not face discrimination under the law. “Material benefits and services flowing to heterosexual couples and denied to queer couples will be a violation of their fundamental right,” he observed.
In response to this, advocate Karuna Nundy representing one of the petitioners said that the top court pushed off some opportunities to the Bharatiya Janata Party-led Centre that had made its stand clear on same sex marriage, reported ANI.
“I will also say that Congress and other governments in power in the states have many opportunities to bring into law the recognition of a partner’s rights to make medical decisions because they can legislate on health, they can look at employment non-discrimination,” she told ANI. “If we heard anything that was unanimous it was that queer citizens have rights. Rights of queer citizens must be protected and state governments can protect them”
The Centre had opposed the petitions, arguing that same-sex marriages are not compatible with the Indian idea of a family and that the demands for their legal recognition represent “urban elitist views for the purpose of social acceptance”.
Amnesty International India termed Tuesday’s verdict as a “setback for human rights” in India.
“This was indeed a historic missed opportunity for the Supreme Court of India to herald in a new era in what has been a long fight for equal rights of LGBTI people,” Aakar Patel, the chair of board at Amnesty International India, said. “All people, regardless of their sexual orientation or gender identity, should be able to enjoy the full range of human rights, including the right to marry.”
He added that the ruling on ending discrimination against same-sex couples sends a clear message to the Indian government that its laws on queer marriage are in an urgent need of reform.
Meanwhile, All India Majlis-e-Ittehadul Muslimeen Lok Sabha MP said that the Supreme Court upheld the principle of parliamentary supremacy through its verdict since it is not up to the courts to decide who gets married under what law.
“I am concerned about an observation made from the bench that transgender people can marry under SMA [Special Marriage Act] and Personal Laws,” Owaisi said in a tweet. “This is not a correct interpretation as far as Islam is concerned as Islam does not recognise marriage between two biological males or two biological females.”
The Supreme Court Bar Association welcomed the verdict, saying that the bench accepted the Centre’s version that the court has no power to give this right of same-sex marriage, reported ANI.
“We are happy that the Supreme Court has held that this power can’t be given to the same sex for having a marriage because India is an ancient country,” Adish Aggarwala, president of the association, said.
The Vishwa Hindu Parishad said that the court’s decision to not give queer couples the right to adopt a child is also a good step, reported PTI.
“We are satisfied that the Supreme Court, after listening to all the parties concerned, including Hindu, Muslim and Christian followers, has given the decision that the relationship between two homosexuals in the form of marriage is not eligible for registration,” the Hindutva organisation’s national working president Alok Kumar said. “This is not even their fundamental right.”