The Supreme Court of India's rejection of petitions seeking to review its marriage equality verdict has not deterred LGBTQIA+ rights advocates, who remain committed to their cause.
On January 9, the Supreme Court upheld its October 2023 ruling which stated there is no fundamental right to marry. The court ruled against legalising same-sex marriage, though a minority opinion (3:2) supported civil unions for queer couples.
The judgment was not entirely unexpected within the community Dr. Pragati Singh, who leads a collective for asexual rights, views this development with a measured perspective. “People have been working in the space for queer rights for decades. The power of advocacy takes a long time on social issues like these,” she said, adding, “This is like a rite of passage we have to go through.”
“This is a setback but not a body blow for the fight for marriage equality,” Anish Gawande, an openly gay politician and a spokesperson for the NCP told BOOM.
The legal struggle and the fight for equality rights is far from over, those championing the cause told BOOM.
Senior advocate Anand Grover remains determined to pursue legal remedies. “This is not over yet,” he said, outlining plans to file a curative petition before the Supreme Court.
A curative plea is the last resort to correct verdicts considered to be “oppressive to judicial conscience and would cause perpetuation of irremediable injustice.” A final legal remedy of sorts. The Supreme Court—which introduced the curative plea in its 2002 Rupa Ashok Hurra verdict—said, “Curative petitions ought to be treated as a rarity rather than regular.”
“If the curative plea also fails, then we will file new petitions. We will keep filing petitions till the courts agree. There will be a time when the courts will agree to pleas seeking marriage equality. We just don't know when,” Grover affirmed.
Senior Advocate Saurab Kirpal, who is open about his sexual orientation, suggests a targeted approach moving forward. “Instead of hoping for an 'overarching umbrella' one wished for through this case, queer couples will now have to file individual pleas for individual rights like adoption of children, entitlement of spousal benefits relating to employment,” Kirpal explained.
“We still have legal recourse,” Anish Gawande said. “A series of petitions will now make their way to courts against the denial of individual rights. The courts will have to give an answer on this sooner rather than later,” he added. “The reality is, instead of the whole pie, now people will have to settle for individual pieces,” Gawande told BOOM.
All eyes on the parliament
In its October 2023 verdict, the Supreme Court said it was up to the legislature to decide on issues of marriage. Though the Centre has made its stand clear on marriage equality, members of several opposition parties have stood for the rights of queer people.
There are at least two private member bills by TMC MP Derek O’Brien and NCP MP Supriya Sule that are awaiting discussion in the Rajya Sabha and the Lok Sabha.
“The Parliament must allow a discussion on queer rights," NCP spokesperson Anish Gawande said. “The government must introspect on why it is not even allowing a discussion on this issue. Why is the BJP scared of discussions about sexuality?” he asked.
Kirpal maintains cautious optimism about legislative progress: “There is no reason to believe that the Parliament is so insensitive. The sexual minority may not be electorally important, but I am certainly hopeful that some rights will trickle in,” he said.
“But the parliament will not do anything until we do something about it. The civil society and activists will have to step up,” Kirpal added.
The lack of rights or the fact that their union may not be legally recognised has not stopped queer couples from “marrying”.
Udit Sood, one of the petitioners in the case seeking marriage equality, married his long-time partner Andrew in California last year in May months after the top court rejected his plea. Supriyo Chakraborthy, the lead petitioner in the case, also married his partner Abhay Dang in December 2023 with all the pomp including Punjabi and Bengali rituals.
“Our community is undeterred and will continue fighting for the right to love. India’s citizenry urgently needs to be sensitized to the reality that queer people exist,” Sood told BOOM.
“After decriminalising homosexuality in 2018, the Supreme Court should’ve upheld our constitutional guarantee of equality and helped move our nation forward. But like in 2013 (when the top court upheld section 377 that criminalized homosexuality), the court has forsaken LGBTQIA+ Indians, opting instead to be complicit in the government’s apathy toward us living on the sidelines of society,” Sood said.
“This is unfortunate, but we have a lot more fight left in us,” he added.
Advocate Rohin Bhatt, author of the Urban Elite, offered a perspective on the future: "We will continue to fight back, push back and rage while at the same time, we will continue to build communities of care."
“The way ahead lies in decentralizing the fight since courts have proven to be unreliable actors,” he said adding that civil society and activists will have to push the agenda with renewed vigour through all other fora.
Bhatt however is sure that this judgement “will not stand the test of time” and “judges of the future” will overrule it the same way as the ADM Jabalpur, the adultery case or the 2013 Suresh Kumar Koushal matter (criminalizing homosexuality).
“This judgment too will be buried 20 feet under with no hope for resurrection,” he said.