Queer eye for a straight land
The Chief Justice of India DY Chandrachud, however, categorically said that the law cannot assume that only heterosexual couples can be good parents as it would amount to discrimination against queer couples.
Representative image (X)
NEW DELHI: There are currently 34 countries where same-sex marriage is legal. India is not one of them as our Supreme Court declined to legalise such unions on Tuesday.
The apex court left it to Parliament to decide, agreeing with the government that the legislature is the right forum to rule on the contentious issue.
The unanimous order passed by a five-judge bench came as a disappointment to members of the sexual minorities, just five years after India scrapped a colonial-era law that criminalised homosexual relationships.
Note the phrasing used by some members of the five-judge bench when it came to pronouncing the four separate verdicts. The apex court held that there is no unqualified right to marriage, and that same-sex couples can’t claim it as a ‘fundamental right’ under the Constitution. The court also upheld one of the adoption regulations prohibiting unmarried and queer couples from adopting children.
The Chief Justice of India DY Chandrachud, however, categorically said that the law cannot assume that only heterosexual couples can be good parents as it would amount to discrimination against queer couples.
One of the silver linings of Tuesday’s development is an observation made by the bench that transgender people could marry under the Special Marriage Act and Personal Laws. A transgender man has the right to marry a woman, a transgender woman has the right to marry a man, while, a transgender woman and a transgender man can also marry. Activists regarded the proceedings as a mixed bag, with many of them calling for legislative action.
In May this year, the Centre had informed the apex court that it will constitute a committee headed by the cabinet secretary to examine the administrative steps that could be taken for addressing “genuine humane concerns” of same-sex couples without going into the issue of legalising their marriage. This was in response to the court asking the government whether social welfare benefits such as opening joint bank accounts, nominating a life partner in provident fund, gratuity, and pension schemes can be extended to same-sex couples without going into the issue of legal sanction to their marriage.
Also Read: SC refuses to give marriage equality right to LGBTQIA+ community
Members of the community have underscored that Tuesday’s judgment leaves queer people still waiting for more inclusive legal recognition and associated benefits. On one hand, judges and lawyers in India can now speak about queerness without stigma. It is a step in the right direction. But there are aspects to this discourse that need to be worked out, not in courts, but in the social spaces shared by all of us — our homes, our educational campuses, and our workplaces.
Like, how are we as a society faring on the acceptance of children in our families coming out as gay, trans, or gender fluid? Are there supportive ecosystems (mental health counselling centers) to help people make their transition gradually? Are people in our cities open to the idea of renting their houses to same-sex couples or gender-fluid individuals? Are they still scared that the queer folks might be an ‘unhealthy’ influence on young people in ‘family-oriented’ neighbourhoods?
How about the office space — are there rules on discriminating against and bullying of sexual minorities; are they willing to hire trans-people at the risk of ‘alienating’ the management and employees? More importantly, are we honouring culture or prejudice when we render sexual minorities as invisible?