Anita Anand | Legalising of gay marriage: The key is mobilising of public support

On October 17, the Supreme Court of India passed a ruling that it cannot legalise same-sex marriages at this juncture. The Chief Justice of India, Justice D.Y. Chandrachud, said that there was “a degree of agreement and a degree of disagreement on how far we have to go” on same-sex marriages and that making such a law was the domain of Parliament.

The judgment was no doubt a disappointment to the petitioners who had sought a positive outcome that would ensure equality and non- discrimination in the laws pertaining to marriage, succession and adoption for the lesbian, gay, bisexual, trans and queer or questioning, intersex, asexual and more (LGBTQIA+) community, rights which are currently assured to only heterosexual couples.

Leading up to this judgment, the five-judge bench headed by the Chief Justice Chandrachud heard arguments in the case in April and May this year. During the arguments, the Centre told the Supreme Court that any constitutional declaration made by it on the petitions seeking legal validation for same-sex marriage may not be a “correct course of action” as the court will not be able to foresee, envisage, comprehend and deal with its fallout. On May 3, the Centre told the court it would constitute a committee headed by the Cabinet Secretary to examine the administrative steps that could be taken to address the “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage.

Some same-sex marriage petitioners had urged the apex court to use its plenary power, “prestige and moral authority” to push society to acknowledge such a union which would ensure them to lead a “dignified” life like heterosexuals. Unfortunately, this did not happen.

Same-sex couples in India face significant legal and social challenges. They are afraid to come out, even to their friends and family. They cannot adopt children or have a child by surrogacy; they do not have automatic rights to inheritance, maintenance and tax benefits; after a partner passes away, they cannot avail of benefits like pension or compensation; they cannot be party in living will or right to life decisions, as they are not the next of kin, not related by blood or marriage. These rights are available to heterosexual couples.

Chief Justice Chandrachud stressed that marriage was not a static, stagnant or unchanging institution, but the Supreme Court cannot compel Parliament or the state Assemblies to create a new institution of marriage. And nor is the Special Marriage Act (SMA) unconstitutional just because it does not recognise same-sex marriages or redraft its provisions to substitute “man” and “woman” or “husband” and “wife”. The right to enter into a union must lead to a recognition by the State for fulfilment of such a right.

The October 17 judgment affirmed that same-sex couples have a right to enter into union and it is the State’s duty is to ensure such unions and couples get protection and a bouquet of rights and that they and unmarried couples can jointly adopt children.

However, the State has fallen short of doing this, and will not be able to do this.

On a positive note, the judgment called to task the Central Adoption Resource Authority (CARA) regulation that restricted queer and unmarried couples from adopting children. The CARA is a statutory body affiliated to the ministry of women and child development and the nodal body for adoption of Indian children, regulating and monitoring all adoptions taking place in India, including inter-country adoptions. The CJI said the law did not preclude unmarried couples from adopting, and that the Union of India had not proven restricting unmarried couples from adopting was in the best interest of children. “CARA has exceeded its authority in barring unmarried couples,” he said.

The judgment admitted that this moment was an opportunity to remedy the historical injustice and discrimination, and thus governance needed to grant rights to such unions or marriages. But between the five judges, it was a minority view. The judgment also says that the courts must exercise restraint and leave it to the legislature to decide this issue with debates, discussion and policy decisions. Yet, in India’s current political climate, it is difficult to debate and discuss these issues that could result in policymaking.

After a decade-long battle in 2018, the Supreme Court struck down the colonial-era law that criminalised same-sex intercourse. Since then, surveys have shown that the acceptance of homosexuality has grown. According to a Pew survey published in June 2023, about 53 per cent of those polled believed that homosexuality should be accepted. But there is still much opposition to same-sex unions and many sections of society believe that marriage is for procreation, not recreation.

The LGBTQ+ community, as a minority, is one among many others in seeking equality and non-discrimination in a country that has a long history of inequality and discrimination based on religion, caste, class, race, ethnicity, gender, sex and linguistics. While the Constitution of India guarantees rights on paper, it has been a struggle for the disenfranchised to secure their rights.

And this may not change any time soon. Rights struggles take time, patience and challenging work such as building consensus within the groups, developing clear plans, strategies and timelines, while anticipating obstacles and identifying allies.

By petitioning the Supreme Court, the LGBTQ+ groups are keeping the agenda of same-sex marriage and subsequent rights on the table and in view of the public. This is a good move. However, the arduous work lies in engaging the public to support their demands. That is the next step.