Is the Recent judgment of SC on Same-sex marriage a setback for LGBTQIA?

The recent refusal of the Supreme Court of India on same-sex marriage is seen as a setback in the queer community. With the recent development in the legal system and giving chief importance to individual rights, there were high chances that this recent judgment would give the Special Marriage Act, 1954, a law that allows the marriage of two individuals belonging to the same sex group.

In the recent judgment of the five-member constitutional bench, the Supreme Court held that it can neither strike down nor include any specifics in the Special Marriage Act of 1954. It further stated that the Constitution, under Articles 245 and 256 empowers the Parliament and The state legislatures to enact marriage regulations or formulate laws regarding same-sex marital union. The minority opinion fought with the state regarding the recognition of queer unions, claiming that it is in violation of Article 15 of the Indian constitution; however, the majority opinion held that the government is not obligated to recognize such a bouquet of rights flowing from such a Union. On the trans person’s right the majority of the bench constituted was of the opinion that transgender individuals have the right to marry within the existing legal framework, their marriages are recognized, and can be registered under marriage laws. The Madras High Court judgment in Arun Kumar v. Inspector General of the Registration, (2019) where the marriage between a Hindu male and a trans woman was considered a legal partnership, was upheld by the Apex court. The court was not in favor of granting adoption rights to same-sex couples. Also, no equal rights will be entitled to queer couples in the areas like ration cards, joint bank accounts, pensions, and gratuities. The Supreme Court issued a direction to the Police department regarding the violence faced by queer persons by their families who are reportedly kidnapped in an attempt to end the relationship. Additionally, the verdict rejected the Government’s argument that same-sex unions are unnatural, non-Indian, or immoral. The court paid emphasis on the long history of gay love in India and the fact that social acceptance does not invalidate the constitutional validity of same-sex relationships.

The major issue raised by the Queer community related to the SC’s judgment was that the judgment is in complete violation of the Fundamental rights of LGBTQIA+ individuals. The verdict goes against the rights like Equality, Dignity, and autonomy of these individuals, which were recognized by the Supreme Court in the previous judgment of, Lata Singh v. State of U.P. (2006), Shafin Jahan v. Ashokan (2018) and Shakti Vahini v. UOI (2018), in these judgments it was held that choosing a life partner is a Fundamental Right, Article 21. The verdict also failed to consider the stigma attached to the gay community and the extreme phases of discrimination faced by LGBTQIA+ individuals due to their sexual orientation and gender preferences.

Contrary to the expectations of the non-discrimination in marriage the court denied same-sex couples the right to marry and passed on the responsibility to the legislature. While any marriage requires a legal consideration, the personal choice of an individual to seek validation is protected by the Constitution, with certain statutory limits. The Majority of the bench supported transgender people in heterosexual but strongly opposed the idea of queer couple’s adoption of a child.

The freedom of same-sex couples to cohabit freely is acknowledged by all judges. The current legislation may be reluctant to approve same-sex unions due to opposition based on their extreme religious and cultural beliefs. The court’s suggestion to form a government committee on the rights of same-sex spouses, offers optimism to the LGBTQIA+ supporters, though the path to legal equality is a tough nut to crack. That is why it is considered that the judgment is a setback to the LGBTQIA community.

Author- Muhammad Shaghil Ansari, First year Law Student at, Jamia Millia Islamia