Apex court applying differential standards in case, say activists; others call it a positive step, despite falling short of deciding to legalise marriage between same-sex couples
iStock photo for representation_ Members of the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex, Asexual (LGBTQIA+) community have vowed to continue their struggle for recognition of same-sex marriage, a week after the Supreme Court of India refused to do so on October 17, 2023.
“We all are even having discussions as to whether all of us vocal on LGBTQ rights should come together and write a letter to the Prime Minister. We too are the citizens of this country and some of the rights demanded by us including legalisation of same-sex marriage should be legalised,” Santosh Giri, director of Kolkata Rista and a transwoman told Down To Earth (DTE).
Giri added that the community would also like to send the letter to President Droupadi Murmu. “We hope she, representing a minority group herself, should well understand the issues of (gender) minorities like us,” said Giri. Murmu is the first Adivasi President of India.
Kolkata Rista is a transgender community-based organisation working for gender and sexual minority (LGBTH) communities in India.
Others agree. A day after the judgment, Utkarsh Saxena, a lawyer, and Ananya Kotia, a PhD student at the London School of Economics, exchanged rings in front of the Supreme Court building in Delhi.
A tweet from the latter read: “So this week wasn’t about a legal loss, but our engagement. We’ll return to fight another day.”
Giri said the community felt that the ruling party at large was not in favour of legalisation of same-sex marriage.
“However, immediately in reaction to the judgment, when Kolkata Rista and other allies from the LGBTQ community approached a few state politicians to garner political support, they did respond in positive. So, we will continue our fight as the case is now in the parliamentary domain,” the activist said.
Women’s rights activist Kavita Krishnan observed that the Supreme Court was applying differential standards to the case. She said:
When Section 377 of the Indian Penal Code was read down by the Supreme Court in 2018, it had accepted that violation of constitutional rights and protection from discrimination fall in its purview. So, correcting discriminatory provisions of law cannot be left to Parliament.
The former office-bearer of the Communist Party of India (Marxist-Leninist) Liberation added that “same-sex couples not being allowed to marry amounts to discrimination being done. So the Supreme Court is applying differential standards in this case. The court should have accepted that excluding queer couples from the Special Marriage Act is an act of discrimination and protecting people from discrimination is its (the court’s) duty. This is a classic case of discrimination—my right to live with full autonomy is my right and it should be the same for every gender and people with any sexual orientation.”
On a different note, while Giri agreed the judgment did create a space for dialogue on LGBTQIA+ rights, a lawyer DTE spoke to pointed out two aspects of the judgment.
“There are two recourses that judges employ when they want to take a decision. It is the classic debate of do judges make law or do they merely interpret it? If one looks at the Supreme Court’s own history, in certain cases one would see when they want to interfere they indeed do by making law and not leaving it to Parliament. On the other hand, when they don’t want to interfere, they say “it is a policy matter,” Qurratulain, Advocate on Record, Supreme Court, said.
Having said that, the present judgment is a positive step towards the legal and constitutional rights of the LGBTQIA+ community, despite falling short of deciding to legalise marriage between same-sex couples, she added.
“The judgment, in my opinion, understands the constitutional morality towards LGBTQIA+ people and in asserting their personal autonomy. The fight for the community does not stop here and they perhaps may even wish to go ahead, try to mobilise Parliament to fight for the legalisation of same-sex marriage and /or a requisite amendment in the Special Marriage Act. But that, time shall tell,” said Qurratulain.
“Make sure there is a conversation on our mental health concerns that is affected by denial of a right we were finally hoping we will get. Also, I appeal to my fellow citizens that when we talk of fundamental rights, nobody’s right to love and marry should be at the cost of violation of others’ rights,” Giri said.
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