India’s LGBTQ+ community has threatened to restart a campaign after the Supreme Court declined legal recognition to same-sex marriage and asked parliament to legislate on the issue.
“We have been fighting for long and will keep doing so," said Anjali Gopalan, one of the petitioners after a five-judge bench threw out the appeals. "This is democracy but we are denying basic rights to our own citizens."
Bollywood filmmaker Onir labelled the verdict a “landmark failure”, but Canada-funded Humsafar Trust gay rights group said the ruling did have positive points for the community.
"It would endorse the fact that we exist and that we can contribute something meaningful to the society," said Gopalan of the order upholding rights of gay couples to “cohabit without threat of violence, coercion or interference.”
Same sex couple Rahul and Shiv said they were “heartbroken”.
“We have no expectations from parliament because we know what they are going to do to us,” added Rahul, a school teacher who like many Indians, uses one name.
Court 'can't make laws'
The ruling came after the judges wrote and re-wrote the verdict four times after hearing 21 petitions on gender ideology since April.
“This court can't make laws but can enforce laws," the ruling said, putting the ball into parliament’s court.
Chief justice Chandrachud said: “The court must steer clear of matters particularly those impinging on policy, which falls in the legislative domain.”
A day after the judgment, Delhi lawyer Utkarsh Saxena exchanged rings with male partner, Ananya Kotia, a student at London School of Economics, on the court’s lawns in national capital, one of Asia’s popular hubs of gay activism.
India estimates a gay headcount of 2.5 million but other calculations put the number at 135 million—or 10 percent of the national population.
Supreme Court lawyer Karuna Nandi argued the verdict placed the onus of safety of the gay community on India’s 28 provincial authorities.
“Rights of queer citizens must be protected and state governments can protect them," she said after the live-streamed trial ended.
‘Urban elitist’
India's government, which labels same-sex unions as “urban elitist views”, had asked the court to dismiss the petitions on grounds that a heterosexual male can only marry heterosexual woman, but senior advocate KV Vishwanathan tore into the argument.
“Is procreation a valid defence from keeping us from effects of marriage? Women beyond 45 who are unfit for pregnancy are allowed to marry; heterosexual couples who cannot have children are allowed to marry,” he said.
Activists warn the ruling denies legal rights such as claims in family matters, succession, inheritance, entitlements, adoption rights and even hospital visitations.
“We thought we had to convince five judges but now we have to convince a billion-plus people that we deserve a life of dignity," said campaigner Udit Narayan.
The ruling comes five years after a 2018 Supreme Court judgment scrapped a colonial-era ban on gay sex in India, but homosexuality continues to be an punishable offence in India’s military.
Last year, it rejected director Onir’s film “We Are”, inspired by the life of an officer who had come out openly as gay.
Rural risk
While Pride parades and meet-ups are common in cities such as Delhi, Mumbai and Bangalore, honour killings by relatives and “corrective rapes” of lesbian women sanctioned by village heads still happen in rural India.
Members of the gay community end up at the bottom of the hierarchy in terms of basic rights until they abandon the family and village and seek anonymity in urban centres.
Only Taiwan and Nepal allow same-sex unions in largely conservative Asia.
Chief justice Chandrachud also ruled same sex couples can adopt children, but three others from his panel of five disagreed.
