Same-sex marriage: ‘Community has got nothing from the SC apart from words’

Members of the LGBTQ+ community attend the live-streaming of the judgment at the Humsafar Trust office at Santacruz East on Tuesday. Pic/Aishwarya Deodhar

The crowd at Humsafar Trust's office in Santacruz applauded as Chief Justice D Y Chandrachud read parts of his judgment and said, "It is not just an English-speaking man in a white-collar job who can claim to be queer, but equally a woman working in an agricultural job in a village." This judgment on same-sex marriage and non-heterosexual adoption rights was expected to change not only the lives of the LGBTQ+ community forever but also to fundamentally alter the way Indian society functions. More cheers and high-fives followed as both he and the second senior-most judge, Justice Sanjay Kishan Kaul, jointly struck down specific guidelines under the Central Adoption Resource Authority (CARA), which barred same-sex or unmarried couples from jointly adopting.

Short-lived happiness

A mountain of disappointment began to cast its shadow on the queer community as the third judge, Justice Ravindra Bhat, of the five-judge bench, started reading his portion on adoption rights, expressing his disagreement with certain parts of the judgment by the first two judges. While Justice Ravindra Bhat, Justice Hima Kohli and Justice P S Narasimha were in agreement with the other two over the rights of adoption, marriage and a life with dignity for the LGBTQ+ community, they were of the opinion that the court would be overstepping its jurisdiction and left the issue for Parliament to decide. The court, though, has allowed states to enact laws recognising same-sex marriage in the absence of any Central laws.

Even before the fourth judge would read his part, one after the other, members from the community, who were pinning their hopes on the top court, started exiting the hall where the live-streaming of the judgment was held and moved into the next office space. The reality of what had transpired in the courtroom had sunk in.

Left shattered

"It is a complete disappointment; we have received nothing from the court apart from words. It is like they are saying that I see you, I hear you, your cause is real but I cannot do anything, please go to politicians," said Ankit Bhuptani, who has been in a same-sex relationship for the last eight years.

The 31-year-old is one amongst the lakhs who feel they have been deprived of the chance to have a family. "My partner and I have talked at length about adoption; we have even decided to name her Katha. The CJI started on a very progressive note, but then coming down to this is just sad," Bhuptani said.

At the Humsafar Trust's office, Vivek Anand, one of its founding members, was seen consoling Bhuptani, urging him to look at the good things that came from the Supreme Court. There was still some confusion at that point on whether the court guaranteed joint custody of a child, but as the dust settled, Anand himself had a long face.

"When the Chief Justice spoke, he said everything that we wanted, and we took that as what has come our way. By the time we came to the third, fourth, and the fifth judge, we realised that we had lost," Anand said, adding that the court has passed the buck to the legislature, "but the government is not going to do it." Another prominent same-sex rights activist, 44-year-old Harish Iyer said, "Their English was good, the grammar was impeccable, and the road to hell was paved with good intentions."

He pointed out that the government's stand in the court during the hearings was very clear and anti-sexual minorities. "We are at the same place we started, but having said that, change has never been easy. The elections are coming very close, and since Parliament is the deciding authority now, I would urge all queer Indians and allies to vote wisely," Iyer said.

Police harassment?

Sitting in his office at Humsafar Trust, Suhail Abbasi, the organisation's co-founder and chairperson, recalled countless cases of police violence that he and his organisation have handled in its 28 years of existence. In some instances, the police have conspired with others to fabricate a romantic scenario, only to show up at the most private moments, subjecting queer men to harassment, humiliation or attempting to extort money from them, he said.

"In the last few years since the 377 judgment, such cases have reduced, and police are very helpful in cases pertaining to queer rights, but some degree of harassment still continues," he said. The court issued a series of directions to law enforcement agencies in its judgment wherein it said, "There shall be no harassment of queer couples by summoning them to the police station or visiting their places of residence solely to interrogate them about their gender identity or sexual orientation." Furthermore, the court noted that the cops cannot force queer persons to return to their families if they do not wish to do so.

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No of years Humsafar Trust has existed