The Preamble of the Indian Constitution begins with the words “We, the people of India”— not “We, the heterosexual people of India.” So, when the queer citizens of our nation demand equal rights, it should come as no surprise. However, things are rarely that simple. In 2018, the Indian Supreme Court issued a landmark verdict decriminalizing homosexuality by striking down Section 377 of the Indian Penal Code, which criminalized consensual same-sex relationships. While that historic judgment was a step in the right direction, it was the first step to a long-winding road, that ultimately leads to gender equality in India.
The next step was legalizing same-sex marriages in India. Since 2018, the LGBTQIA+ community, gender activists, lawyers and LGBTQIA+ allies have put in their toil and sweat to make sure that same-sex couples are bestowed with the right to marriage.
But what makes marriage such an important social institution? Marriage entails a range of legal rights, privileges, and responsibilities. Heterosexual couples who are married can adopt children or pursue surrogacy or assisted reproductive technology (ART) to have children. They are entitled to automatic rights regarding consortium, inheritance, maintenance, and tax benefits. Additionally, they are beneficiaries under various employment laws. Even after the death of a spouse, the state provides ongoing protection through pension benefits and compassionate appointments. So, there’s little room for doubt as to why the LGBTQIA+ community perceives wedlock as the key to widespread social acceptance and respect.
The results of the culmination of years of effort that went into securing the right to marriage for same-sex couples in India unfolded today in a historic judgment in the Supreme Court.
Kaushik Gupta, Queer Activist & Senior Counsel, Calcutta High Court
The petitions filed by same-sex couples, transgender individuals, and LGBTQIA+ activists collectively contested the provisions of the Special Marriage Act 1954, the Hindu Marriage Act 1955, and the Foreign Marriage Act 1969. Their main argument was that these laws, as they currently stand, fail to acknowledge non-heterosexual marriages, thereby perpetuating discrimination against the LGBTQIA+ community. It is important to note that during the hearings, the bench clarified that the challenge would be limited to the Special Marriage Act and would not extend to personal laws. As a result, the challenge as it pertains to the Hindu Marriage Act and Foreign Marriage Act was not addressed.
The Supreme Court judges cited the fact that since marriage is not a fundamental right, same-sex couples cannot claim it as a matter of right. The Judgement held that the court could not strike down or read down the provisions of the Special Marriage Act owing to "institutional limitations" as this falls under the domain of the Legislature. That is why the Supreme Court stated that the issue of legalizing same-sex marriage should be addressed by the Parliament rather than the Judiciary.
However, all 5 judges unanimously agreed to the establishment of a Committee to explore the possibility of granting specific legal rights to same-sex couples, without recognizing their relationship as a marriage. This decision was made in response to a query raised by the Court regarding the issuing of executive instructions to ensure that same-sex and queer couples have access to welfare measures and social security benefits. These measures may include allowing them to open joint bank accounts and designating their partners as nominees in life insurance, PF, pension, and other similar matters.
It is with a deep sigh of dissapointment that I write that this judgment did not yield the result the LGBTQIA+ community of India was looking forward to. Today, we did not join the progressive ranks of Taiwan, the only other Asian country where same-sex marriage is legalized. However, it remains to be seen what the Parliament decides regarding the granting of legal status to same-sex couples or how it responds to granting social welfare measures to queer couples. For now, the fight to end gender discrimination rages on.