While rejecting the prayer for same-sex marriage the Supreme Court of India through its judgements made the following points:
- This court cannot legislate.
- There is no fundamental right to marry.
- This judgement has not touched the Special Marriage Act and all personal (religious) laws.
- Split opinion on adoption by same-sex couples
- Transgender can marry.*
This Supreme Court judgement on same-sex marriage does not change the ground situation at all till the Parliament brings a legislation. Same-sex marriages were taking place in India for a long long time and have been documented extensively in the 1980s and 1990s. Same-sex marriages will continue to take place in future as well. Same-sex couples certainly do not need this SC judgement to take the leap. Effectively the SC has taken the LQBTQIA community for a long ride by building up hopes but without delivering the needed marriage equality for the simple reason that the judiciary does not have the mandate to legislate. These are matters to be debated and decided upon by the legislature. Halfway through the final arguments the constitution bench judges realised their folly and even confessed that it is for the Parliament to make a law on the issue!!! It was a pathetic sight indeed then to see lawyers plead for peripheral issues like same-sex couples being allowed joint bank accounts etc! The Court then went on to request the Solicitor General to come forward with what the government would do for welfarism of same-sex couples.
Another negative of this judgement is that it has effectively subverted ongoing efforts viz campaign, movement for same-sex marriage. Besides, the tempo will have to be built up all over again. Street level protest politics will have to be started anew and it will have to be a long drawn out struggle with lots of sacrifices.
ABVA had made the demand for same-sex marriage in 1991 through its path breaking report – ‘Less than Gay’. This report detailed same-sex marriages in India in the 1970s and 1980s. In 1999 ABVA documented the attempted suicide of a lesbian couple in Orissa through its report titled ‘For People Like Us’. ABVA made the demand before any country in the whole world had legalised same-sex marriage. ABVA has been petitioning since 1991 for legislation on same-sex marriage. The SC took up the issue 32 years later but as expected failed to deliver.
Much Ado About Nothing
This academic exercise undertaken by the SC has provided free publicity (live telecast proceedings for days) to the foreign funded NGOs; foreign funded PIL lawyers; the judges who were able to hog the limelight; and Gay & lesbian people who had deserted the LGBTQIA community by leaving India for greener pastures abroad and dramatically reappeared in the 21st century at the Supreme Court of India to get their same-sex marriage with foreign spouses legalised through the ongoing cases. Thus they piggy rode on genuine petitioners. In fact halfway through the final arguments the judges made it clear that they are not amending the Foreign Marriage Act. Considerable court time got wasted because of such petitions.
ABVA in May 2023 had opined that the LGBTQIA community should withdraw the cases from the court. We wrote:
“If these 5 judges of the constitution bench declare in their judgement that Parliament alone can legislate on same-sex marriage, it will create a problem for future generations (again the section which opts for judicial route rather than parliament for their liberation) who will then have to ensure a larger bench of more than 5 judges to reverse the judgement awaited in the present case. A Herculean task indeed!
In such a scenario withdrawing cases from the court is a tactical retreat dictated by one’s conscience and wisdom; then at least the petitioners and their lawyers will come out with their self-respect and dignity intact and their heads held high.”
On behalf of AIDS Bhedbhav Virodhi Andolan Collective
* Madras High Court in 2019 has already ruled that a man and a transgender woman can marry.