The Supreme Court had done well to agree to hear some petitions that seek legal recognition and statutory backing for members of the Lesbian, Gay, Bisexual, Transgender, Queer, Intersex and Asexual (LGBTQIA+) communities to marry the person of their choice. A bench of the Chief Justice of India (CJI) DY Chandrachud and Justice Hima Kohli has sought the government’s response to the petitions that seek legalisation of marriage under the Special Marriage Act of 1954 for those who cannot marry under their personal law. The court has also transferred all related cases pending before high courts to itself. The court’s decision to hear the cases is a positive move and has given rise to expectations that it would build on its landmark judgements in the 2018 Navtej Singh Johar case which decriminalised homosexuality and the 2017 Puttaswamy case which upheld the right to privacy.
The government has in the past opposed same-sex marriage as, according to it, “a marriage in India necessarily depends upon age-old customs, rituals, practices, cultural ethos and societal values,” and no fundamental right can be expanded to include the right for same-sex marriage to be recognised under the laws. But the arguments about social attitudes and actions are not good enough to justify discrimination against a section of people who are equal citizens of the country as any others. Compelling reasons have been presented to the court in support of the petitioners’ case. What is sought for same-sex couples is the same protection the court has allowed to inter-caste and interfaith couples, who also face opposition from society in many places. The court was also told that the demand is only to make the 1954 Act gender-neutral.
The 2018 judgement has helped to change social attitudes and advance the cause of equality. It has helped LGBTQIA people to assert their right to live in dignity. Courts have recognised transpersons’ right to marriage and instructed parents, civil authorities and the police to safeguard LGBTQIA+ rights. Social change takes time to happen, but the court has often catalysed it with progressive judgements. Many rights and benefits of citizens like the right to adopt children depend on the legal right to marriage. Justice Chandrachud, who was part of the bench that struck down Section 377 of the IPC in the 2018 judgement, had said that it was only one step. He has expressed the view that “Equality is not to be achieved by the decriminalisation of Section 377 of IPC alone, it must extend to all spheres of life including the home, the workplace.’’ The thinking behind these words is clear.