Nowhere in the world where queer sex has been decriminalised, has law reform that introduced marriage equality followed within five years. Indeed, even where civil partnership rights have been recognised for queer people, it has often taken several years for marital rights to then be conferred. To expect such rapid change in India – an even more complex context given personal laws – was to be untethered from reality. And, to expect the Supreme Court to provide marriage equality in such a context was naïve at best. After witnessing the hearings in the case, any wise reader of the bench should have known that the claim for marriage equality was not on the cards.
I, for one, am glad the court did not “legislate” queer marriage. To bestow that would need amendments to several laws, which is the domain of the people’s elected representatives, not a selected few jurists. In a nation that still hangs on to the vestiges of democracy, it is frightening to imagine the tyranny of these few over the lives of millions on any given issue. This was never a case to be debated in the courtroom, but one which required robust thought and detailed understanding of the law reform required to provide queer people with relationship rights through the legislature. Such effort requires not the lurch towards filing writ petitions, but the hard work of engaging with the larger diverse queer community, understanding our priorities and needs, amplifying our realities, strategically thinking of how we can be represented, and sensitising and advocating with those in positions of power whose understandings need to be enhanced. This is time-consuming, participatory work, but then nothing worthwhile comes easy. Most of us in the queer community know this well, having worked for decades to rid India of Section 377.
The judgment of the Supreme Court has been disappointing not because it rejects marriage equality, but because of some of the other things it does not go far enough to do. For example, the non-recognition of discriminatory acts against queer live-in relationships as actionable claims while foisting responsibility on the legislature, is a failure of the court to exercise judicial review. While the Court uses lofty themes of dignity, inclusivity, and empowerment, ultimately it is the implementation of its directives that will give real meaning to much of the substance of the ruling. After all, like the Puttaswamy judgment on privacy, if such decisions are followed daily in the breach, then they are as valuable as the paper they are written on.
Another example of seeming half-heartedness is the Court asking the government to set up a committee to look into the issues brought before it. While lending some clarity on the scope and composition of this forum, the court fails to indicate a timeframe. Recall this: In 2018 while decriminalising queer people, the same court directed the State to “ensure that this judgment is given wide publicity through the public media… at regular intervals, and initiate programmes to reduce and finally eliminate the stigma” against queer people. Further, and “above all, all government officials, including and in particular police officials … be given periodic sensitisation and awareness training of the plight” of queer persons. Five years later, absolutely nothing has been done in this regard. There is no reason to believe that a committee to look into equality claims by queer people will be set up and made meaningfully functional.
But with every setback, we must look for glimmers of hope. Fortunately, two petitions before the Court – Borah and Kajal – brought these issues to the fore, which the court made vital observations on. For example, the Court requires the State to step up and demonstrate the best of its instincts and the fullness of its duties to be the protector of the marginalised. The Court recognises in clear terms that all forms of violence against queer people are rampant, and that they are entitled to the protection of the State, which is also responsible for its prevention. Indeed, more specifically, it directs the police machinery to take several measures, including to not harass people due to their queerness or to force them to return to violent natal homes. The court also views the forced mutilation of intersex persons, and sexual orientation conversion and gender identity ‘treatments’ as violence, and directs the government to ensure that these are halted immediately. This lifeline is critical to the lives of several queer people. But, it requires the full weight of the State to guarantee thorough implementation.
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What lies ahead for the queer community? The evidence that has been documented and presented to the Court is only but a little of all that exists to reveal the inequality and violence that queer people face in their daily lives. Whether a committee is set up or not, it is crucial for us to augment this data and use it to advocate for equity, so that the need for change becomes undeniable to even the naysayers. Here, the Court suggests where our energies may lie – not only at the level of the Union government but perhaps also where there is leeway in working with state governments to foster progressive reform.
The buck has been passed – not just to the legislature, but also back to the queer community to organise and work in unison on a long yet likely rewarding path.
Vivek Divan is a lawyer and queer activist, and heads the Centre for Health Equity, Law & Policy at ILS, Pune
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