Devastated by the judgment; court passed the buck to the state, says same-sex marriage petitioner

Same Sex Marriage Verdict

Udit Sood, a member of the LGBTQ+ community and one of the petitioners who had moved the Supreme Court to seek legal sanction for same-sex marriage, told Moneycontrol that he was devastated by the judgment of the Constitution bench today.

On October 17, a five-judge bench of the Supreme Court refused to grant legal sanction to same-sex marriage and held that it was in the domain of the parliament to frame such legislation considering the number of rights involved in it.

Sood said, “It is the job of the courts to protect queer people against discrimination.”

Sood elaborated, saying that this ruling sends a negative message to young queer people growing up in India today. “It tells them you have a right to marry. However, to exercise this right, you must lie to yourself, lie to your partner, lie to your community, and then you can get married. If you choose to be open, you cannot get married,” he said.

Tahira Karanjawala, a lawyer who represented the petitioners in the case, noted that while she expected this outcome from the court, she was disappointed to know that the court had not ruled that marriage is a fundamental right. “I felt they would declare the fundamental right to marry. However, all five judges have ruled against it," she said.

Sood and Karanjawala shared their views with Moneycontrol on the judgment on same-sex marriage delivered by the Supreme Court on October 17.

Has the needle really moved?

Sood noted that in the last five years since homosexuality was decriminalised by a Constitution bench of the Supreme Court, awareness about queer people has not increased much. He said, “The 2018 judgment was a very broad ruling, which declared that queer citizens are entitled to the same constitutional and human rights as others. There were directions to the government to publicise the ruling and initiate programmes to alleviate discrimination. No steps were taken. Nothing has been done to publicise the judgment. Today I am just not optimistic.”

In 2018, the Supreme Court struck down portions of Section 377 of the Indian Penal Code (IPC), which criminalised homosexuality. The judgment also imposed obligations on the central government to ensure the protection of the queer community. The queer community in India had argued that same-sex marriage is merely an extension of the decriminalisation of homosexuality in 2018.

Karanjawala, however, noted that the very fact that hearings on same-sex marriage took place indicates that there has been some change in the way society looks at queer people. “There has been a huge change both socially and conversationally from the day the 2018 judgment was passed to today. Around seven years ago, we were not even having such conversations. Today, the kind of debate the public has been exposed to because of these hearings has been the real win for me," she said.

Sood weighed in to say that while this is a missed opportunity for the court to not have led the discussion into becoming law, there has been some change because of these hearings.

The positives

Both Karanjawala and Sood agreed that the judgment has greatly benefitted the transgender community.

All five judges of the Constitution bench had clarified that transgender persons can marry under existing laws, including religious personal laws such as the Hindu Marriage Act. The judgment noted that transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws that regulate marriage. Furthermore, it said, “Intersex persons who identify as either male or female have the right to marry under existing law, including personal laws that regulate marriage.”

Both Sood and Karanjawala also agreed on the fact that the court was right in directing authorities to ensure the protection of queer people from being harassed. This is also a positive outcome of the judgment, they said.

Way forward

Noting that the queer community is used to setbacks, Sood said, “If anything, we are resilient, and we know how to take a beating, strategise, and move forward.” He noted that the community will commiserate and discuss what to do next.

“Even if the judgment had gone in the other direction, the fight would still not have ended. As a community, we have a lot to do to make lives better for queer Indians. Today we still have a long way to go,” he said.

Sood is a patent attorney working at a law firm in the United States of America.