As the Supreme Court’s Constitutional Bench, led by Chief Justice of India D.Y. Chandrachud, began pronouncing its judgement in the historic marriage equality case, Kajal and Bhawna waited with bated breath, along with the 19 other petitioners in the case and queer people across the country. A lesbian couple currently on the run and forced to hide their relationships in their own hometowns, the pair battled confusion, fear and anxiety as the judgements started coming through, only to be left disappointed as soon as they realised what it meant.
“Leaving the Parliament to decide the fate of our future seems unfair,” said Ms. Kajal, who hails from a tier-2 city in northern India.
Queer couples, petitioners, and activists who spoke to The Hindu said that disappointment was “an understatement” as a description of their feelings. Transgender persons said the recognition of same-sex marriages would have meant so much more for their community, given how routine violence is from their native families.
‘Not good enough’
LGBTQIA+ activists and legal experts added that whatever recognitions have been granted in the minority judgements were good and welcome but “not enough”, noting that most of it had been laid down in previous judgements and had been said before. But activists across the board maintained that they will continue fighting for their rights.
Supriyo Chakraborty, the lead petitioner in the case, told The Hindu, “We are deeply disappointed by the judgement today. Though the court has reiterated that queer people have the right to form relationships, they stopped well short of legal recognition. On a personal level, we feel proud that we fought this battle. Though we lost, lots of dinner table conversations were initiated because of this case. We remain hopeful that one day, we will have full marriage equality.”
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‘SC failed to deliver’
Muskan Tibrewala, one of the few queer lawyers who argued in the case, however, said that all the work and the hours of putting up with dehumanising arguments in the Supreme Court had now gone to waste. “Considering that the government has not been supportive of our rights, and historically the Supreme Court being the upholder of queer rights, the SC has failed to deliver its responsibilities,” added Ms. Tibrewala.
In a majority judgement in the case, the Supreme Court ruled that non-heterosexual couples do not have the right to have their relationships recognised either as marriage or as a civil union, while re-affirming the right of transgender persons in heterosexual relationships to get married. The court also ruled in the majority that queer couples cannot be allowed to adopt children, dashing the hopes of Ms. Kajal and Ms. Bhawna, who wanted to start thinking about adopting a child in a couple of years.
But even for queer couples who are not currently thinking about marriage or children, the judgement came as a blow, even if not an unexpected one.
“The Supreme Court knows fully well that the government is opposed to the idea of giving us our rights. Even then, how can they hand it back to a government committee — especially one that will most likely end up having cisgendered people in decision-making positions,” Grace Banu, a trans activist based in Tamil Nadu, added.
In danger from kin
“Despite the court mandating police protection for queer couples in danger from their families, in small towns like ours, the family’s wish gets precedence over our rights and the police force has never been in our favour and has sought opportunities to harass us,” said Ms. Bhawna. “Had the Supreme Court pronounced the judgement in our favour it would have made our fight against our families much easier and there would be no need for police intervention,” added Ms. Kajal.
Don Hasar, a trans individual who runs the Himachal Queer Foundation working with queer people in rural areas, agreed. “This judgement could have been a game-changer for queer people in rural India,” they told The Hindu, adding that the ruling may make things more complicated for queer people in villages dealing with their families.
Karuna Nundy argued for two queer couples before the Supreme Court. She told The Hindu that a historic opportunity to recognise the constitutional rights of queer families had been missed by the Supreme Court, as only one judge was needed to join Justices Chandrachud and Sanjay Kishan Kaul in their declaration. “However, the rights of transgenders to marry a person of the opposite gender has been recognised. That’s a step forward, as also the affirmative protections in criminal law for queer couples,” she said. But Don Hasar added that this part also left a gap in addressing issues faced by trans people in non-heterosexual relationships.
