No mandate to hold centre accountable: SC lawyer on same-sex marriage verdict

The Supreme Court's verdict on same-sex marriage in India has received mixed reactions from the LGBTQIA+ community. The onus is now on the Parliament to decide if the unions of queer couples can be legally recognised. While some see it as a complete disappointment and feel let down by the upholders of justice, some also see it as a positive step towards achieving their rights.

This said, there still remains a considerable amount of confusion looming in the air regarding the rights refused and granted to the queer community. Many believe, the right to union granted by the apex court, is a big step towards inclusivity, but what needs to be understood is why the legal right to marry plays a significant role for queer couples.

Mid-day Online spoke to 25-year-old Muskan Tibrewala, a Supreme Court lawyer and 35-year-old Ashish Srivastava, an IT professional working as a senior manager at a shipping firm and a member of the queer community to understand the complexities of the verdict.

The significance of the legal right to marry
Tibrewala, one of the lawyers for the petitioners of the case, tells us why the legalisation of marriage for same-sex couples is significant. Heterosexual (a person attracted to someone of the opposite sex) married couples are entitled to certain rights that accrue from a marriage.

In Photo: Supreme Court lawyer Muskan Tibrewala

For example, in a heterosexual union, if a married person were to die at the workplace, then his partner and children would naturally be recognised as his dependents under the law. Yet another example could be having the legal right to keep their married partner as a nominee in their provident fund. Heterosexual married couples also have the right to jointly own a property and adopt a child.

Since queer couples have been denied the legal recognition of marriage, these rights, granted to heterosexual married couples, won't be given to them.
For queer couples in India, the lack of these basic rights is felt in their day-to-day life. Srivastava, a resident of Mumbai had to face the ugly side of this during the Covid-19 pandemic when his partner, Inder Vhatwar, tested positive. He says, "The doctors insisted on speaking to his family members only. They said I was just a friend and that they needed his family to discuss his medical condition. It made me feel upset and a little humiliated that in spite of being his husband, I was not being considered. Eventually, we managed to convince the medical staff."

This was not the only time when the couple faced an issue. They had to face challenges when trying to jointly purchase an apartment in Mumbai. "We had a tough time buying a house together since banks were refusing to give joint loans to us. It was a big mess."

"This," Srivastava says, "makes legalising same-sex marriage important for us." "We are not asking for any special rights but the basic equal rights. Legalising same-sex marriage will help us get the subsequent benefits every heterosexual married individual already has," he adds.

Srivastava has been in a loving relationship with his partner, Inder Vhatwar, for the past 11 years. Vhatwar is a 42-year-old entrepreneur and LGBTQIA+ activist who has been creating a safe space for community members since 2010.

In photos: Ashish Srivastava (left) and Inder Vhatwar (right)

Both Srivastava and Vhatwar started creating LGBTQIA+ positive content during the lockdown. "Everyone was online at that time. It helped me and Inder reach out to a large number of queer individuals online and make a difference."

He recalls a memory that he feels is worth sharing with us. "One of my friends who is a therapist was helping a queer teenager and requested me to do the same. I thought I was expected to speak to the teenager but my friend said it was his parents that needed counselling. I spoke to the parents and showed my happy relationship with Inder as an example to them which did have an impact."

Realising his voice was making a difference, Srivastava began interacting with more members of the community who wished to be heard.
This queer couple met in 2012 at a pride parade in Bangalore which makes their union doubly special for them. The couple was initially in a long-distance relationship with Srivastava residing in Bangalore and Vhatwar living in Mumbai. It was after Srivastava moved to Mumbai, did the two start living together. "Soon our parents got involved. It took us some time to convince them since that was also when I came out to my own parents. Once they were on board, it was time to celebrate our love and commitment," says Srivastava.

With a hint of lament in his voice, he tells us, "It has been over seven years since we have been waiting to tie the knot. We could have got married in any other country where same-sex marriage is legal. We choose not to because our marriage won't be legal in our own country. We are persistent about getting married in India. My partner and I will fight for it and wait for the day the country legalises same-sex marriages."

Although the queer community did face a setback after the recent verdict, each member strongly believes that same-sex marriage will get legal recognition in India, "I'm very hopeful that the queer community in India will see that day. You and I shape society. I can already see a massive positive change and acceptance among the members of our society. This said, just as Section 377 was decriminalised, same-sex marriage will also be legalised."

The implications of the verdict
Although the Supreme Court of India has refused to legalise marriage for queer couples, it does recognise the existence of their love and intimacy. Elucidating the judgement further, Tibrewala says, "If a queer individual wishes to stay together, they can do so. Queer couples will be entitled to all those rights that heterosexual unmarried couples have." Besides this, the majority judgement also stated that if there is any sort of discrimination done against the celebration of this union, the law will protect the rights of such couples. In addition to this, the court has upheld the CARA regulation that restricts unmarried couples from adopting a child. This means, queer couples too won't have a right to adopt.

Now, as per the apex court's direction, the Union Government has been entrusted to set up a committee that can decide on this subject. The court has set out directives and factors that the committee must take into consideration before formulating any policies.

Highlighting a key loophole, Tibrewala says, "The court has not set any time frame for the committee to submit a report. There is no clear mandate set out. We don't know what sort of committee will be formed, or whether there will be any queer representation on that committee. The committee will also be at liberty to delay the process of granting legal marriage rights, forming policy, and even implementing it. Besides, due to the unfavourable nature of the comments made by the authority in the past, queer individuals already feel ignored. So it's all very up in the air."

The lawyer further states, "It's not that the Supreme Court cannot set a specific time frame for such committees. It has done so in many cases in the past. The court has also set up a committee itself when it wanted to speed up the process of a particular case, but no such thing was done for us."
On a lighter note, Tibrewala mentions, "We as lawyers always try to make the best out of any judgement. This said, there were a few positive statements made." The legal right to marry was recognised for transgender people and the court also reiterated the ban on forced conversion therapy.

The fight for equality shall continue
Like every other member of the community, Srivastava and Vhatwar were disappointed too. "It took us some time to process what had happened. I had partially expected that the outcome might not completely be in our favour given that the court does not have the power to amend laws, but I did expect the court to take some actions that ensured the directives laid out would get implemented. Nevertheless, this won't deter us from fighting for our rights. We have seen tougher days when homosexuality was a crime in India. This is a minor setback and we will recover from it to fight back with greater strength," confirms Srivastava.
Members of the LGBTQIA+ represent at least 10 per cent of the Indian population. With queer professionals present in every sector of the country from medicine to law, Srivastava says, he is hopeful that their fight for equality will see the face of victory.

When asked about what message he would like to give to young queer couples, Srivastava shares, "Prioritise your physical and mental safety. Be hopeful. As we say, umeed pe duniya kayam hai, don't get too disappointed, it's not a major loss. We shall keep fighting."

On a similar note, Tibrewala also shares a message of hope and resilience with her community. "We got this," says this determined lawyer.

Also Read: Impeccable English, hollow verdict: Queer voice on Supreme Court's same-sex marriage ruling