Heartbreak outside D gate of Supreme Court in Delhi as same sex marriage refused recognition

The hopes of a section of India’s population were dashed on October 17, 2023 as the Supreme Court refused to grant legal recognition to same-sex marriages in the country.

Around noon after the court decision came, Down To Earth (DTE) spoke to individuals representing the Lesbian, Gay, Bisexual, Transgender and Queer (LGBTQ) community waiting impatiently outside D gate of the apex court for a positive decision.

“I am heartbroken. The words of the court here are very traditional in tone, I am afraid. Even the politics of India today doesn’t seem to be in favour of our rights. One of the petitioners in the case whom I met when I reached the Supreme Court today said the fight (for LGBTQ rights and in direction of legalising same-sex marriage) has to continue and it has to hit the streets. This was my only take away from the court visit today,” said an undergraduate English student DTE met at D Gate.

A five-judge Constitution bench led by Chief Justice of India D Y Chandrachud and justices S K Kaul, S R Bhat, Hima Kohli and PS Narasimha was hearing the case.

The petitioners’ key argument during the court proceedings was:

India is a marriage-based culture and LGBT couples should be granted the same rights as any heterosexual couples have, like the status of spouse in finance and insurance issues; medical, inheritance, and succession decisions, and even in adoption and surrogacy matters.

Mario Da Penha, a petitioner in the case, told DTE: “I am deeply disappointed with the verdict which neither declares marriage a fundamental right nor does it seem to give direction to Parliament to enact legislation (in the direction of legalising such marriages).”

“It is, however, another day in our struggle and we will continue. We will take the conversation about our rights to fellow citizens and help them understand why we are, in essence, just like them and like everyone else in the county deserving of equality and dignity,” Da Penha, who is a historian and activist, added.

Chief Justice of India Chandrachud, in his judgment, said:

The court could not strike down or read down the provisions of the Special Marriage Act owing to “institutional limitations” as the same would fall within the domain of the Parliament and the Legislature.

Meanwhile, the Bench unanimously decided the Union shall form a committee to determine rights of queer unions.

A disappointed woman among the lot standing outside the court told DTE, “When Justice Chandrachud decriminalised Section 377 of the Indian Penal Code in 2018, he had said it is the judiciary’s responsibility in a democracy to protect the right of a minority. When that is the benchmark this court had set, why are they now saying it is outside their purview? It is not about same-sex marriage. The argument was always about marriage equality.”

The Supreme Court reversed the Delhi High Court’s verdict in 2013 in Suresh Kumar Koushal vs. Naz Foundation case and held that the decision to decriminalise homosexuality could only be made by Parliament and not the court.

It also held that Section 377 criminalises certain acts and not any particular class of people. In 2018, after decades of grassroots activism, the application of Section 377 to private consensual sex between men was ruled unconstitutional by the Supreme Court in the country, effectively decriminalising homosexual activity.

“First, it is the Supreme Court’s or the judiciary’s responsibility to grant a minority its rights. Second, if they do not want to grant us marriage rights, why are any legal rights being attached to marriage? If one has shared his/her life with a person for 40 years (in case of a heterogeneous companionship), wouldn’t the partner of this person have legal rights? So, if they have mentioned marriage is not a fundamental right, let it not be. But why tie legal rights with it in any case when it is not so?” the woman asked.

“Initially, we saw some positivity in the court proceedings while we stood and waited for the judgment at the court gate. And then, everything went back to status quo for the LGBTQ community in the country,” said Suv from Delhi School of Social Work.

Nandan Singh Latwal, an independent filmmaker working as a trainer with a gender and media literacy program spoke to DTE over the phone.

“I identify as a gay man. I feel that the law should be able to protect and assure the rights of every citizen. The heteronormative section of our society has been provided with rights to marry and divorce without even asking for it. Some social provisions and policies are in place for them by default. Why can’t the same rights be extended to minority, non-heterosexual groups as there is a demand being made directly from them? This is a question that we need to ask among ourselves, particularly on this day,” Latwal said.

Other countries

In 1989, Denmark became the first country to establish “registered partnerships” for same-sex couples.

Thereafter, similar laws, generally using specific vocabulary — civil union, civil partnership, domestic partnership, registered partnership — to differentiate same-sex unions from heterosexual marriages came into effect in Norway in 1993, Sweden in 1995, Iceland in 1996, the Netherlands in 1998, and elsewhere in Europe, including the United Kingdom in 2005 and Ireland in 2011.

Many European countries initially prevented same-sex couples from adoption and artificial insemination. By 2007, however, most of these restrictions had been removed.

Outside Europe, Israel recognised common-law same-sex marriage in the mid-1990s. The Israeli Supreme Court further ruled in 2006 that same-sex marriages performed abroad should be recognised.

Same-sex civil unions were recognised in New Zealand in 2005 and in parts of Argentina, Australia, Brazil, and Mexico in the early 21st century. In 2007, Uruguay became the first Latin American country to legalise same-sex civil unions nationwide; the legislation became effective the following year.

In 2000, the Netherlands revised its same-sex partnership law and the following year became the first country to offer “marriage” to same-sex couples. Several other European countries subsequently legalised gay marriage.

In 2003, the European Union mandated that all of its members pass laws recognising the same-sex marriages in fellow EU countries.

In May, Taiwan became the first country in Asia to recognise same-sex marriages and in July, Nepal’s Supreme Court issued an interim order enabling the registration of same-sex marriages for the first time.

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