"With liberal judges like Justice DY Chandrachud as part of the Constitution Bench, today was our best shot at achieving legal recognition for same-sex marriages. We're back to where we started, fighting for the LGBT community, just like 20 years ago," expressed Bindumadhav Khire, an LGBTQ activist and the director of the Bindu Queer Rights Foundation in Pune. This follows the decision by a five-judge Constitution bench of the Supreme Court on Tuesday, refusing to grant legal recognition to same-sex marriages.
Chief Justice of India DY Chandrachud, heading the bench and delivering its verdict on 21 pleas seeking legal validation for same-sex marriages, stated that the court can't make law but can only interpret it, leaving it to Parliament to amend the Special Marriage Act. However, Khire is skeptical about the government taking action. "If the legislature had intended to do it, they would have done so years ago. The Section 377 judgement came in 2018, and for five years, they've done nothing," he said. R Raj Rao, an author and former Head of the English department at Savitribai Phule Pune University (SPPU), shares Khire's assessment of the government. "In my 2018 book 'Criminal Love,' I highlighted a pattern, almost as if there is a conspiracy between the judiciary and the government to continuously pass the responsibility to each other. I don't anticipate the government, especially under the current regime, taking action. In 2018, I remarked that this government didn't appear genuinely pleased when homosexuality was decriminalised, and their subsequent years of silence only served to confirm those suspicions," he said.
Both Khire and Rao express a shared sentiment regarding the impact of the ruling on the community. "This is a significant setback for the community. I expect the next 10 years will be a tough period for LGBTQ activists," said Khire. "The Constitution bench, despite its progressive outlook, delivered a judgement today that seems to be sitting on the fence. Unfortunately, it's unlikely to bring about substantial change for the queer community," said Rao. Khire highlighted that the only positive aspect of today's judgement was directing the Centre, States, and Union Territories (UTs) to ensure that the queer community isn't subjected to discrimination.
SC lawyer Vivek Narayan Sharma explained the verdict, stating that it unanimously asserts there is no unqualified right to marriage, and same-sex couples can't claim it as a fundamental right. The verdict directs the Central government to establish a high-powered committee to study all relevant factors related to same-sex marriage. Anand Chandrani, the founder of Sarathi Trust, discussed the committee, expressing his hope for fair representation from the community. Chandrani maintained his optimism, stating, "We can't lose hope. One SC judgment won't silence our voices."
LGBT activist Satyashodhak Abhilash shared a less hopeful view of the government, saying, "The government is primarily engaged in communal politics, and the LGBT community is getting caught up in it. Until there are changes in the regressive society and the regressive attitude of the government, no changes can be expected." Chandrani humorously added, "I think we need to run for election and go to Parliament to raise our voices."