A view of the annual Namma Pride march in 2020. Pic for representation.
Credit: DH Photo/Pushkar V
Bengaluru: Activists and legal experts in Bengaluru say the verdict in the same-sex marriage case, delivered on Tuesday, offers hope but is not what the queer community was expecting.
Advocate Arvind Narrain, LGBTQIA+ activist, says a takeaway is that all judges asserted that LGBTQIA+ people have fundamental rights.
“They believe that the community is entitled to form relationships, entitled to cohabit with other persons, and not be subject to violence,” he explains.
However, queer relationships are not recognised within a legal framework. “The court has made no changes to the Special Marriage Act (SMA), saying it will lead to judicial legislation. But queer people do have the right to form associations under Article 19 1(C) and Article 21,” explains Arvind, who is also the author of the book ‘Right to Love’.
The Chief Justice of India D Y Chandrachud has said the state has an obligation to recognise such associations and guarantee certain rights to people in such relationships. “A committee should be constituted to look into members of the LGBTQIA+ community who are in a union or intimate associations. He pointed out that guidelines that indicate that only married couples can adopt must be struck down, while the majority of the bench disagreed,” Arvind says.
The concerns addressed included one of equality and the fundamental right to life, says Maitreyi Krishnan, president of All India Lawyers Association for Justice. “The fundamental right to life has often been expanded to include a whole range of rights that are required to live a dignified life. Companionship and marriage become an essential core of one’s living,” she says.
She says the powers of the court are not as limited as assumed. “Given the fact that law has evolved, and includes Article 14 and 21, its narrow reading of an amendment of the Special Marriages Act is disappointing,” she says.
Activists’ concerns
Priyank Sukanand, activist and member of the Coalition for Sex Workers and Sexual Minorities’ Right (CSMR), says the concept of transgender persons being able to marry — a trans man who identifies as a man and a trans woman who identifies as a woman getting married in the heterosexual context — doesn’t call for a celebration. “It is something that has always been there and has just been reiterated,” he adds.
About the way forward, he says the community will look at which party will include the queer cause in the 2024 elections manifesto. CSMR is putting together a video to explain what the verdict says, in Kannada and English. “We will release the video online by next week,” he adds.
Writer, counsellor and gender rights activist Vasudhendra says the legal system is responsible for upholding the rights of the minority, but it is passing the responsibility on to politicians.
“If the court was able to decriminalise Section 377, then why not do something now? There are various reasons marriage is needed within the community,” he says. He believes parents are not worried so much about their ward’s sexuality as about what the future holds for them. “When smaller countries like Nepal have passed favourable judgements (yet to be implemented), why not here?” he wonders.
Vasudhendra is positive that “justice will come, and that the community will keep raising its concerns”.
What did the judgement say?
Advocate Arvind Narrain explains:
Do same-sex persons have the fundamental right to marry?
The court unanimously said no to this.
Can the Special Marriage Act be interpreted to include within its framework LGBTQIA+ persons?
No, the court says, as this includes legislative challenges.
Do queer people have a right to form unions and intimate associations?
No, said a majority of the judges. However a minority of the judges agree that the next step is some way to recognise the union, where the government should constitute a committee to look into the rights of such a union.
Do queer unmarried people have the right to adoption?
The current guidelines do not allow queer unmarried individuals to adopt children together.
Laying down directives for different sections of the society...
Chief Justice D Y Chandrachud laid down a range of directives to the government to combat homophobia and heterosexism, and to the police to ensure protection of same-sex couples.
Transgender people can marry...
This means that a transgender man can marry a female or a transgender woman can marry a man.