Kolkata: The Supreme Court judgment on the legality of same-sex marriage elicited mixed responses from LGBTQ activists, with one section hailing parts of the Constitution Bench’s order, while others expressing dissatisfaction as it did not legalise same-gender weddings.
The court can’t make law but only interpret it and it is for Parliament to change the Special Marriage Act, Chief Justice of India D Y Chandrachud who headed the bench said in his ruling.
The bench also said that the ability to choose a life partner goes to the roots of the right to life and liberty under Article 21 of the Constitution.
“This is historic! Transgenders inside heterosexual relations are right away given the right to marry, rights to adoption and for whole LGBTQIA+ umbrella,” said Bappaditya Mukherjee, Founder and Director of Prantakatha’, an NGO.
“The SC has directed both the Centre and state governments to facilitate all constitutional privileges to the community through law in an expedited manner with specific directions with respect to privileges associated with civil union,” he said.
The apex court directed the Centre, states and UTs to take steps to sensitise the public about queer rights and ensure that inter-sex children are not allowed sex-change operations at an age they cannot fully comprehend the consequence.
Non-heterosexual and heterosexual unions must be seen as both sides of the same coin, said Justice SK Kaul, a member of the Constitution Bench.
“I see this as a powerful and important way ahead not only for the LGBTQIA+ community, but also for unmarried couples, couples in romantic reactions. Also being the largest democracy in the world, this judgement will pave equity for millions across countries,” Mukherjee said.
However, Samata Biswas, a professor at Sanskrit College and University, who teaches gender studies, is not euphoric.
“The Supreme Court denying marriage equality to same-gender couples, and pushing it to the currently regressive legislature is definitely a setback for the queer movement in India,” she said.
The five-judge Constitution bench refused to grant legal recognition to same-sex marriages and said it is the job of Parliament to change the Special Marriage Act.
“While matrimony is not and should not be the only form of recognised partnership, denying marriage equality strengthens regressive and conservative voices in society,” Biswas, also Secretary of Calcutta Research Group, a thinktank.
Transgender activist Ranjita Sinha said that the Supreme Court judgement may not have given legal validity to same-sex marriage, but it has recognised the fight by the transgender community against adverse situations.
“We have been waging a battle since 2014 for the rights of the transgender community. We also have a law to protect us,” she said.
Sinha was referring to the Transgender Persons (Protection of Rights) Act, 2019 which was enacted to provide for protection of rights of transgender persons and their welfare.
“We are happy the way the judiciary has been supportive of the right of marriage, adoption, livelihood, and shelter for the transgender community,” she told PTI.
Directing the Centre, states and Union Territories (UTs) to ensure the queer community is not discriminated against, the CJI, who is heading the constitution bench, said queer is a natural phenomenon known for ages and is neither urban nor elitist.
Some of the petitioners had urged the apex court to use its plenary power, “prestige and moral authority” to push society to acknowledge such a union which would ensure LGBTQIA+ lead a “dignified” life like heterosexuals.
LGBTQIA+ stands for lesbian, gay, bisexual, transgender, queer, questioning, intersex, pansexual, two-spirit, asexual and ally persons.
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