Out in the World: India's Supreme Court punts on same-sex marriage

  • by Heather Cassell, BAR Contributor
  • Wednesday October 18, 2023
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Shivangi, left, and Rahul Sangwan, one of the petitioners, talk to the media after the Supreme Court verdict on petitions that seek the legalization of same-sex marriage, in New Delhi, India, Tuesday, October 17. Photo: AP photo/Manish Swarup
Shivangi, left, and Rahul Sangwan, one of the petitioners, talk to the media after the Supreme Court verdict on petitions that seek the legalization of same-sex marriage, in New Delhi, India, Tuesday, October 17. Photo: AP photo/Manish Swarup

The Supreme Court of India declined to legalize same-sex marriage in a ruling October 16, punting the issue back to India's Parliament and dealing a blow to India's estimated 2.5 million LGBTQ people. The court did, however, recognize the rights of same-sex couples.

Chief Justice of India, D.Y. Chandrachud, announced the court ruled that marriage was not a fundamental right under India's constitution because there was no law governing same-sex marriage in the document. The court agreed with India's government, which opposed the case, that it was not able to make laws, stating its purview was to interpret the law.

The justices' ruling was livestreamed on YouTube Monday at 10:30 p.m. (Pacific time).

San Leandro resident Priti Narayanan, who married her wife and business partner, Madhuri "Mads" Anji, in 2014, stayed up watching the livestream Monday night. She said she was hopeful but "not surprised the verdict came out the way it did."

"I didn't expect it. We only decriminalized gay sex five years ago. How long did it take in America from the point of decriminalization of homosexuality to gay marriage?" asked the 45-year-old bisexual businesswoman who co-owns KoolFi Creamery in San Leandro. "It is a long road to travel."

Pyoli Swatija, a lawyer at the Supreme Court, was less understanding.

"The court has failed its duty to uphold the constitutional rights of the people of India not to be discriminated on the basis of their sexuality," she told Al Jazeera.

Chandrachud, who dissented from the ruling, denied the Indian government's legal argument that homosexuality is an "urban" or "elitist" concept and upholding the traditional family model of a man and a woman, claiming same-sex marriage is "not comparable to the Indian family unit concept."

"The institution of marriage has undergone a sea change. It is incorrect to characterize marriage as a static, stagnant, or unchanging institution," Chandrachud said, addressing Prime Minister Narendra Modi and his ruling Bharatiya Janata Party's conservative position.

"While marriage is not fundamental itself, it may have attained significance because of the benefits, which are realized through regulation," he continued.

He said the state must legally recognize relationships to have "real meaning" and the "state must recognize a bouquet of entitlements which flow from an abiding relationship of this kind. A failure to recognize such entitlements would result in systemic discrimination against real couples."

Chandrachud also said LGBTQ people have the right to access goods and services without discrimination.

The justices agreed same-sex couples have the right to be in a relationship without being discriminated against, and transgender people have the right to marry under the law as long as one member of the couple identifies as a man and the other as a woman.

The plaintiffs argued that they were being denied their constitutional right by not being able to marry and receive the benefits straight couples receive through marriage.

Justice S Ravindra Bhat delivered the much anticipated 3-2 ruling. Chandrachud opened the court announcing there were four separate judgments delivered by himself, Bhat, SK Kaul, and P.S. Narasimha. The other justice was Hima Kohli. Chandrachud started with his own opinion before Bhat delivered the court's ruling, confusing many gay Indian Bay Area residents as well as the plaintiffs such as Udit Sood.

The court ruled Parliament needed to legislate recognizing same-sex relationships. The court also recognized the discrimination against same-sex couples by India's government by denying them the right to adoption, medical decisions for partners and children, inheritance, and other issues raised by the plaintiffs. The court authorized the government to proceed with the proposed cabinet secretary-headed panel to address the concerns brought forward by same-sex couples in the case. The court also instructed Parliament to rectify the inequality queer couples face by not having their relationships legally recognized.

The B.A.R. reported earlier this year that the court consolidated the same-sex marriage cases — four directly petitioning the high court and 18 from jurisdictions across India — into one same-sex marriage case before the five-judge Constitution Bench in March. In April and May the court heard the case in a 10-day hearing that was livestreamed on the court's YouTube channel.

The case comes five years after the court struck down the British colonial-era anti-sodomy law, Section 377 of the Indian Penal Code, commonly referred to as 377, which criminalized gay sex, in 2018.

Crowds gathered outside the court listening to the nearly two-hour decision. Inside the court, the plaintiffs, including Sood, an intellectual lawyer, and their legal team listened to the justices' ruling. Plaintiffs' attorneys included India's former attorney general Mukul Rohatgi, and gay lawyer Saurabh Kirpal, the son of Bhupinder Nath Kirpal, India's 31st chief justice.

Sood said the legal team was discussing options while digesting the official ruling that was released late in the afternoon local time in Delhi following the justices' morning announcement.

"We're just beginning to dive into it and there's a host of problems with it," Sood told the B.A.R. in a phone conversation from Kirpal's house in New Delhi October 17. "There is a host of ideological gaps."

"It's disappointing that the judiciary sort of let us down here," he added.

Marriage equality petitioners and their legal team based much of their argument on India's precedent-setting Special Marriage Act of 1954, one of India's five separate marriage laws governing Hindus, Christians, Parsis, and Muslims (which is largely not codified). The Special Marriage Act is a secular marriage law that allows marriages between people of different castes and religions in India.

"At the same time, we have avenues to move forward," Sood said.

What's next?

Sood said the legal team could appeal the court's ruling, lobby Parliament, and push for increasing public acceptance of same-sex marriage.

The Pew Research Center found in June that 53% of adult survey respondents in India believed same-sex marriage should be legal, while 43% opposed it. Past Pew surveys showed acceptance of LGBTQ people has dramatically changed, from 15% when the question of whether homosexuality should be accepted was first asked in 2014 to 37% in 2020.

Sood said, "There has been a sea change over the last year on this subject."

He attributed the change in attitude to several reasons. He cited the number of deaths during COVID-19 and Chandrachud deciding to livestream court hearings, including the same-sex marriage case, when he became head of the court last year.

"People have understood that there are more important things in life and that to exclude your loved ones in times of need is just too hard, too painful," he said, referring to COVID. "People are generally more sympathetic."

Chandrachud's livestreaming the court's same-sex marriage case hearings was even more impactful, Sood continued, noting that the daily broadcasts brought the court into everyday Indians' homes and it was widely covered in the media.

"It brought this discourse from people in Delhi, Bombay, and Calcutta ... sort of like privileged, more educated cities ... into the homes of people around the world, around the country regardless of background," he said. "I think that has really moved the needle in a way none of us expected."

Vivek Nair, the board secretary of Bay Area LGBTQ South Asian group Trikone, agreed, calling the decision a "milestone toward our end goal."

"It is a little bit disappointing, but it's also heartening at the same time," he said. "We have a branch of government that brought all of these issues into public discourse.

"They are exposing the entire country to some of the challenges that our community faces beyond just the right of basic human dignity to be with a partner," Nair, a gay man, continued. "Now we're talking about all the benefits and advantages and lack of discrimination that we would receive, should same-sex marriage be legalized."

Nair was excited that the court used language, such as "queer relationships" and "civil union," and "they defended the rights of transgender individuals" in its decision discussing the case, he said.

"It opens the door for more dialogue and issues strong recommendations to legislative bodies at all levels," he said, adding it's "getting society and legislature ready for what is to come."

"Our community will win eventually," said Narayanan, adding love always wins. "It's just that the fight must continue."

Sood said that the proponents of marriage equality need to continue their efforts.

"It's clear that the fight needs to move from the Supreme Court to the streets," Sood said. "There needs to be more activism."

He said it was important that India's LGBTQ movement build upon the "momentum" the case brought to India. He pointed to the media attention and corporate interests, especially with India's desire to be more in line with the global business community.

"Now is the time to build on it," Sood said.

Taiwan and Nepal are the only Asian countries that have legalized marriage equality.

Full Disclosure: Heather Cassell is friends with Priti Narayanan and Madhuri "Mads" Anji and occasionally helps out at KoolFi Creamery.

Got international LGBTQ news tips? Call or send them to Heather Cassell at WhatsApp/Signal: 415-517-7239, or [email protected]

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