LGBTQ+ community firm on reversing setback in marriage equality fight

NEW DELHI: After three long years of waiting for the Supreme Court's verdict on marriage equality rights, the LGBTQ+ community and their allies find themselves in a state of frustration and disappointment.

The Supreme Court on October 17 refused to legalise same-sex marriage, placing it upon the Parliament and state governments to decide if non-heterosexual unions can be legally recognised. A five-judge Bench of the apex court announced a 3:2 verdict on petitions seeking rights for members of the LGBTQ+ community to marry, and choose family.

The apex court delivered four verdicts in the same-sex marriage case, and the majority opinions were held by Justices S. Ravindra Bhat, Hima Kohli and P.S. Narasimha, and the minority views by the Chief Justice of India (CJI) DY Chandrachud and Justice S.K. Kaul.

The prolonged anticipation has resulted in a sense of unease and uncertainty in their pursuit of equal rights. However, amid this frustration, the community's hopes remain undeterred, and their resolve to fight for their rights burns brighter than ever. The extended wait has only fueled their determination to achieve equality, proving that their energy to secure the right to marry whomever they love is unwavering and forever alive.

The main question put up in front of the Bench was whether the right to marry was a fundamental right. In November 2022, when the case was heard by the court for ten days, same-sex couples had submitted before the court that their inability to marry under Indian family law violated their fundamental rights to equality, life and liberty, dignity, free speech and expression, etc.

This time, five judges unanimously agreed that the right to marry is not a fundamental right, and those who are seeking same-sex marriage cannot claim it as a fundamental right until the law permits them to marry. All the judges also agreed that transgender persons in heterosexual relationships have the right to marry under existing laws, including personal laws which regulate their marriage.

Sridhar Rangayan and Saagar Gupta, who have been together for 29 years, are the petitioners in the marriage equality case. Speaking to IANS, they said, “We didn’t expect this from the highest court in India." "I don’t get it. The five-member Bench was the committee that was supposed to determine the rights. It is their duty which they have abdicated and passed on,” Rangayan, a filmmaker, activist and festival director of KASHISH Mumbai International Queer Film Festival, said.

"What was more frustrating was that they sugar-coated it with so much queer positivity, which is totally unwanted, when they were not going to give a positive verdict," the 61-year-old said, adding that it not only makes him angry but also sad about the collapse of the judicial system in India.

"Now I don’t even know when I will ever be able to get married to my partner of 29 years," he remarked. Rangayan and Gupta's plea to the court was that as long-standing committed partners, they should be able to sign on critical medical decisions for each other. "If the person beside me who has lived with me for close to 30 years cannot sign then who will? The other rights of shared property and adoption rights are also there. But why can’t we be equal citizens of India? Shame on the highest court for copping out," Rangayan said.

The top court's verdict has sparked a wave of disappointment among advocates for equality in the context of same-sex rights. The predominant focus on same-sex marriage has left many feeling unsatisfied. This ruling has raised questions about whether it adequately addressed the broader spectrum of challenges faced by the LGBTQ+ community in their pursuit of equal rights and social acceptance. "It was disappointing to see years of advocacy, activism and discourse reach a dead end with the SC ruling against queer marriage rights. I would also like to point out that the verdict was on marriage equality rights, more than it's pegged as same-sex marriage verdict. It was an all encompassing verdict which includes the multiple queer possibilities and realities. However, correcting that is defeating right now as the verdict went nowhere near what one and many expected," queer Journalist Sourish Samanta said.

Samanta is someone who doesn't believe in the institution of marriage, however, he felt at odds with what the larger queer movement prioritised, but he also realised that lived realities are so much different than our respective political discourse.

"Such a verdict echoes deep with the potential to reach the diverse queer community that cuts across class-caste," he said. "I can only lament and express my utter disdain to having to put our fundamental rights on hold. However, this should also jolt our community stakeholders into realising that besides marriage laws, a stronger case can be made for holistic individual queer rights," Samanta said.

He went on to say that while marriage is mostly a priority, the community should pivot this tough time realising that the rot of an institution like marriage goes deeper than one realises.

"While important, there are instances and chances to work on queer rights that can cater to more gender-marginalised folx and also many economically-marginalised queer folx. So, perhaps a more class-caste sensitive approach would be great, just as the CJI rightly had pointed out that queerness is across class and caste, and not just an urban identity," he said.

Asking about their unfinished agenda, Rangayan said that the way ahead is that they continue to fight, continue to demand justice and knock on other doors. "I’m 61 now, but I still have a lot of fight left in me. I’ll continue the struggle alongside thousands of queer youth, so future generations can live with pride. We will not rest till we achieve equal rights that are due to all citizens of this country," he said.

In the face of disappointment and frustration, the LGBTQ+ community and their allies remain steadfast in their pursuit of equal rights. The verdict also serves as a reminder that the fight for LGBTQ+ rights extends beyond marriage. Many are now shifting their focus towards a more holistic approach, acknowledging that the struggle for equality encompasses various aspects of life, class, and caste within the queer community.

Despite the setback, activists like Rangayan remain committed to their cause. They, along with countless others, will continue to fight for justice.