
Depending on which news channel you just turned off today was either a historic blow to the LGQBTQ+ community in India or a huge step forward. It was both. We were braced for the blow, we know our country, and we know they won’t give up the “sanctity” of marriage so easily, and if we know our parliament, we also know that changing the (Special) Marriage Act or instituting a Queer Marriage Act (I like that), is not within the ambit of the Supreme Court. We’ve known that ever since these hearings began, the Supreme Court ruled that marriage is not a fundamental right and therefore cannot be granted by the Supreme Court but this judgement was about a lot more than marriage. It was about the precedent of how our institutions shall view the queer community and whether they will extend to us the rights we deserve, and on that our courts have spoken quite clearly, it is time for progress, inclusion and protection. Let me explain.
I spent most of the day talking to lawyers, activists and queer youth who wished to have the judgement clarified to them (and tbh, I am delighted i grew up to be the grandma they come to for this kind of thing, it’s very validating), and I understand, legal precedents are difficult to parse without the explanation of certain frameworks so let me explain some of what has transpired (to the best of my ability, and heavily aided by experts, whom I am paraphrasing for some of this with their permission). A lot of people have broken it down into “all the rights of marriage shall now be granted except being able to call it marriage” and it is somewhat true, let’s delve. The Supreme Court does not make the law, but it interprets it, and in its interpretation of the current situation, it has found that the constitution is already inclusive of the condition to protect and provide for queer communities and the denial of certain rights that have until this moment not been granted to us, constitutes discrimination. For the enforcement of its guidelines, it has ordered the creation of a committee that shall work towards the implementation of its decisions, including figuring out how certain rights will be provided. The judgement includes the interpretation that queer couples will be allowed to adopt children (outside of marriage) as part of their union (edit: only 2 out of 5 judges are in favour of adoption, including the chief justice so adoption will likely still have to availed by single parents in queer unions), queer couples will be able to nominate one another on insurance policies/savings/banking documents. Essentially, some of the “bouquet of rights” that come with marriage, will be available to unions other than marriage (as a lot of it already is to live in couples who are unmarried, except for adoption, more on that later).
In addition to rights, certain guidelines have also been made to protect against discrimination and safeguard from violence/hostile environments. There has to be the institution of helplines for queer youth, safehouses for queer couples fleeing hostile environments, sensitisation programmes at all levels of government as well as in police stations. In addition, the police is not allowed to harass, call on queer couples to question them about the nature of their relationship, return fleeing queer youth to hostile families etc. Some of this was covered under the right to dignity that was assured to the queer community when article 377 (that decriminalised “unnatural sex” and by extension same sex unions) was struck down, but in clarification the court has created a framework to enforce this dignity. There seems to be some confusion as to whether these guidelines are “optional” and whether state governments can just choose what they want to do, that is not how it works. There are issues that the court can rule on and issues (such as what constitutes marriage) that only the parliament can change.
In the wake of this judgement, the most resounding concern coming from the community, activists and RTI activists is that this committee not be constituted merely by bureaucrats who do not understand the issues but also be involved in by the queer community itself. They claim that the jurisprudence set during the formulation of disability rights should apply, thereby ensuring that in the decision-making process, “nothing about us (should be decided), without us.” Legal experts expect that we shall soon see an uptick in cases filed by queer couples who may face resistance or issues in adoption and will need to approach the court for clarification of extant laws, thereby leading to a (much needed) overhaul in adoption laws in India. In clarifying the position with regard to legal rights like adoption and nomination, the court has essentially opened the door for private citizens to demand those rights from courts/states that attempt to deny them, ensuring that we will be seeing a lot more litigation in the future. It remains to be seen how adoption will play out (and whether certain provisions of CARA stand quashed), but also whether unmarried heterosexual couples will now, under the same provision, also be allowed to adopt. This has so far been disallowed due to issues of inheritance laws and is now being questioned because in the (loosely quoted) words of the Chief Justice “if a live-in heterosexual couple wishes to adopt, they still have the option to get married and do so, whereas the queer couple does not have that option and are thereby being denied equality,” which does not completely clarify whether the right will be extended to the heterosexual couple as well (and we shall await the written judgement in order to understand it better).
That’s the judgement and what it legally means, but there is more than legality at play here. This hearing may have been about marriage, but through it, the court has taken a very definitive stance on where they stand with regard to queer rights. There has been some frustration expressed by queer groups and I absolutely understand that, I understand the feeling that you are being given a consolation prize, but within the legal community, the sentiment they seem to be trying to get across is that within its powers the court has strived to provide everything they could provide, and taken a very clear position on equality and the need for active implementation of anti-discrimination policies, making redressal for the denial of what are now clearly viewed as rights easier, more accessible and available. Queer groups are also calling on queer individuals and allies to be active participants in the legal process of availing our rights. I know the temptation to focus on being denied marriage is high right now, but the things that we have achieved today are monumental and the people who fought to get us here deserve to be celebrated.
If you grew up as a queer person in India, as I did, you may remember how difficult it was to be considered valid. So many of us have been ostracised, forced into closets under threat (or reality) of violence, forced into marriages we did not want, been shamed and beaten and abused for our identities, had systems like religion and mental health practitioners confidently tell us our sexual orientations and gender identities were diseases (and not been able to do anything to stop that or argue otherwise), and to come from that, to here, where the head of our judiciary proclaims to the country that the abnormality lies in discrimination not in our identities is huge. It’s not everything, but it’s huge, and every single queer person who has ever suffered for their identity deserves to be celebrated today. Tomorrow, we’ll argue and nit-pick. Tomorrow, we will tear the judgement apart and set up new battles. Tomorrow, we will take note of the political realities we must battle in order to secure our legal rights. But today, for one fucking second, let’s look at how far we’ve come and thank those who brought us here.








